published in http://judis.nic.in/supremecourt/filename=40484
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 809 OF 2013
(Arising out of S.L.P. (Crl.) No. 7211 of 2012)
State of M.P. .... Appellant(s)
Versus
Najab Khan & Ors. ....
Respondent(s)
J U D G M E N T
P.Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the final judgment and
order dated 13.12.2011 passed by the High Court of Madhya
Pradesh, Bench at Gwalior in Criminal Appeal No. 150 of
2006 whereby the High Court partly allowed the appeal filed
by the respondents herein by maintaining the conviction and
reducing their sentence to the period already undergone (i.e.
14 days) while affirming the decision dated 08.02.2006
1Page 2
passed by the Additional Sessions Judge-I, Guna (MP) in
Sessions Trial No. 311 of 2001 with respect to the conviction
of respondents herein under Section 326 read with Section
34 of the Indian Penal Code, 1860 (in short “IPC”).
3) Brief facts:
(a) On 11.08.2001, in the morning, when Mullo Bai, sister
of Fida Hussain-the complainant, was passing through the
field of Mohabbatdin - co-accused, at that time, Mohabbatdin
abused her and told her not to pass through his field. On
this, Mullo Bai assured him that she will not pass through his
field in future. On the same day, in the evening, at about
7.00 p.m., when Fida Hussain, along with Ahmed Hussain,
Gulabuddin and Guddu, was going to the shop of one Nawab,
on their way near the hand pump, Najab Khan and
Mohabbatdin having spade in their hands and Gani Khan
holding a danda (stick) in his hand along with Munnawar Ali
came at the spot and surrounded Fida Hussain. Fida Hussain
tried to escape but could not succeed and Mohabbatdin
attacked him with the spade due to which he sustained
injury below his left shoulder and left arm. In order to save
2Page 3
him, the other persons, viz., Guddu and Gulabuddin, who
were accompanying Fida Hussain, intervened. After beating
Fida Hussain, the accused persons fled away from the spot.
Thereafter, Fida Hussain went to the Radhogarh Police
Station and an FIR was lodged which was registered as
Crime No. 248 of 2001.
(b) During the course of investigation, on 22.08.2011,
Najab Khan was arrested and Gani Khan and Munnawar Ali
were arrested on 10.09.2001. The police also got recovered
the weapons (spades and stick) used in the commission of
the aforesaid act.
(c) After the investigation, a charge-sheet was filed against
the respondents herein under Sections 307, 341, 326 read
with 34 IPC and the case was committed to the Court of the
First Additional Sessions Judge-I, Guna (MP) which was
numbered as Sessions Trial No. 311 of 2001. Further,
besides the accused persons/respondents herein,
Mohabbatdin was also charged under Sections 341 and 307
of IPC but vide order dated 11.10.2002, passed by the High
Court in Revision No. 378 of 2002, it was directed to stay the
3Page 4
proceedings against him and to continue the trial against
rest of the persons i.e., the respondents herein.
(d) During the trial, on a compromise between the accused
persons and Fida Hussain-the complainant, the accused
persons were acquitted under Section 341 of IPC.
(e) By order dated 08.02.2006, the Additional Sessions
Judge, convicted the respondents herein for the offence
punishable under Section 326 read with Section 34 of IPC
and sentenced them to undergo rigorous imprisonment (RI)
for three years along with a fine of Rs.500/- each, in default,
to further undergo RI for 3 months.
(f) Against the said order, the respondents moved an
appeal being Criminal Appeal No. 150 of 2006 before the
High Court. The High Court, by impugned judgment dated
13.12.2011, partly allowed the appeal by maintaining the
conviction of the respondents herein and reduced their
sentence to the period already undergone.
(g) Aggrieved by the said order, the State has filed this
appeal by way of special leave.
4Page 5
4) Heard Mr. C.D. Singh, learned counsel for the appellantState and Mr. Lakhan Singh Chauhan, learned counsel for
the respondent-accused.
5) The only point for consideration in this appeal is
whether the High Court is justified in reducing the sentence
to the period already undergone, viz., 14 days, without
providing any cogent reason for the conviction under Section
326 read with Section 34 IPC.
6) In view of the fact that the respondents herein-accused
appellants before the High Court did not challenge the
conviction but only prayed for reduction of sentence
awarded by the trial Court, there is no need to traverse the
details regarding the conviction. The fact remains that these
persons were convicted by the trial Court under Section 326
read with Section 34 IPC and sentenced to RI for three years
along with a fine of Rs. 500/- each.
7) It is stated before the High Court that during the trial
they were in custody for a period of 14 days and the offence
has already been compounded by the complainant and the
appeal is pending since 2006. The High Court, taking note of
5
the above said aspects, reduced their sentence to the period
already undergone.
8) It is relevant to point out that after the registration of
the FIR, the complainant was sent for the medical
examination which was conducted by Dr. Anupam Singh
(PW-9) and after examination, the doctor found the following
two injuries on the person of the complainant:
“a. An incised wound of 15 inches long extending from left
scapula to left shoulder joint bone deep bleeding present.
b. An incised would of 1 inch long inter scapula
bleeding was present. The doctor also opined that injuries
has been caused by hard and sharp object and was of
grievous nature. The doctor also opined that the said
injuries could have supposed a threat to the life of the
complainant.”
It is further seen that on 13.08.2011, the x-ray of the chest
and shoulder of the complainant was examined by Dr.
Sitaram Raghuvanshi (PW-8) who found fracture of left
scapula divided into two pieces extending from glenoid
cavity with dislocation of left shoulder joint. Considering
such injuries, due to which the complainant remained in
hospital for 29 days, we are of the view that the High Court
is not justified in reducing the sentence to the period already
6Page 7
undergone without assigning any acceptable and special
reason for the same. The High Court also failed to take note
of the opinion of the doctor that the injuries inflicted could
have posed threat to the complainant’s life.
9) It is settled principle of law that the punishment should
meet the gravity of the offence committed by the accused
and courts should not show undue sympathy with the
accused persons. This Court has repeatedly stressed the
central role of proportionality in sentencing of offenders in
numerous cases. In Shailesh Jasvantbhai and Another
vs. State of Gujarat and others, (2006) 2 SCC 359, this
Court held that the sentence imposed is not proportionate to
the offence committed, hence not sustainable in the eyes of
law. It was further observed as under:
“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”
7Page 8
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 having regard to the nature of the offence and the
manner in which it was executed or committed etc.”
10) This position was reiterated by a three-Judge Bench
of this Court in Ahmed Hussein Vali Mohammed Saiyed
and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein
it was observed as follows:-
“99.….The object of awarding appropriate sentence should
be to protect the society and to deter the criminal from
achieving the avowed object to 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 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 the interest of
society which needs to be cared for and strengthened by
string of deterrence inbuilt in the sentencing system.
8Page 9
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 and 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 this case, the court further goes to state that meager
sentence imposed solely on account of lapse of time without
considering the degree of the offence will be counter
productive in the long run and against the interest of society.
11) In Jameel vs. State of Uttar Pradesh, (2010) 12
SCC 532, this Court reiterated the principle by stating that
the punishment must be appropriate and proportional to the
gravity of the offence committed. Speaking about the
concept of sentencing, this Court observed thus: -
“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
9Page 10
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.”
12) In Guru Basavaraj @ Benne Settapa vs. State of
Karnataka, (2012) 8 SCC 734, while discussing the concept
of appropriate sentence, this Court expressed that:
“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.”
13) This Court, in Gopal Singh vs. State of Uttarakhand,
JT 2013 (3) SC 444 held as under:-
“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 principle of just punishment is the
bedrock of sentencing in respect of a criminal offence…..”
14) Recently, the above proposition is reiterated in Hazara
Singh vs. Raj Kumar & Ors., 2013 (6) Scale 142.
15) In view of the above, we reiterate that in operating the
sentencing system, law should adopt the corrective
machinery or deterrence based on factual matrix. The facts
10Page 11
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 Courts 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.
16) Though it is stated that both the parties have amicably
settled, in view of the fact that the offence charged under
Section 326 is non compoundable and also in the light of
serious nature of the injuries and no challenge as to
conviction, we are of the view that the High Court is not
11Page 12
justified in reducing the sentence to the period already
undergone.
17) Accordingly, we set aside the order of the High Court
and restore the sentence imposed on the respondents
herein. Consequently, the appeal filed by the State is
allowed and the respondents-accused (A-1 to A-3) are
directed to surrender within a period of four weeks from
today, failing which, the trial Judge is directed to take
appropriate steps for sending them to prison to undergo the
remaining period of sentence.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(M.Y. EQBAL)
NEW DELHI;
JULY 01, 2013.
12
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 809 OF 2013
(Arising out of S.L.P. (Crl.) No. 7211 of 2012)
State of M.P. .... Appellant(s)
Versus
Najab Khan & Ors. ....
Respondent(s)
J U D G M E N T
P.Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the final judgment and
order dated 13.12.2011 passed by the High Court of Madhya
Pradesh, Bench at Gwalior in Criminal Appeal No. 150 of
2006 whereby the High Court partly allowed the appeal filed
by the respondents herein by maintaining the conviction and
reducing their sentence to the period already undergone (i.e.
14 days) while affirming the decision dated 08.02.2006
1Page 2
passed by the Additional Sessions Judge-I, Guna (MP) in
Sessions Trial No. 311 of 2001 with respect to the conviction
of respondents herein under Section 326 read with Section
34 of the Indian Penal Code, 1860 (in short “IPC”).
3) Brief facts:
(a) On 11.08.2001, in the morning, when Mullo Bai, sister
of Fida Hussain-the complainant, was passing through the
field of Mohabbatdin - co-accused, at that time, Mohabbatdin
abused her and told her not to pass through his field. On
this, Mullo Bai assured him that she will not pass through his
field in future. On the same day, in the evening, at about
7.00 p.m., when Fida Hussain, along with Ahmed Hussain,
Gulabuddin and Guddu, was going to the shop of one Nawab,
on their way near the hand pump, Najab Khan and
Mohabbatdin having spade in their hands and Gani Khan
holding a danda (stick) in his hand along with Munnawar Ali
came at the spot and surrounded Fida Hussain. Fida Hussain
tried to escape but could not succeed and Mohabbatdin
attacked him with the spade due to which he sustained
injury below his left shoulder and left arm. In order to save
2Page 3
him, the other persons, viz., Guddu and Gulabuddin, who
were accompanying Fida Hussain, intervened. After beating
Fida Hussain, the accused persons fled away from the spot.
Thereafter, Fida Hussain went to the Radhogarh Police
Station and an FIR was lodged which was registered as
Crime No. 248 of 2001.
(b) During the course of investigation, on 22.08.2011,
Najab Khan was arrested and Gani Khan and Munnawar Ali
were arrested on 10.09.2001. The police also got recovered
the weapons (spades and stick) used in the commission of
the aforesaid act.
(c) After the investigation, a charge-sheet was filed against
the respondents herein under Sections 307, 341, 326 read
with 34 IPC and the case was committed to the Court of the
First Additional Sessions Judge-I, Guna (MP) which was
numbered as Sessions Trial No. 311 of 2001. Further,
besides the accused persons/respondents herein,
Mohabbatdin was also charged under Sections 341 and 307
of IPC but vide order dated 11.10.2002, passed by the High
Court in Revision No. 378 of 2002, it was directed to stay the
3Page 4
proceedings against him and to continue the trial against
rest of the persons i.e., the respondents herein.
(d) During the trial, on a compromise between the accused
persons and Fida Hussain-the complainant, the accused
persons were acquitted under Section 341 of IPC.
(e) By order dated 08.02.2006, the Additional Sessions
Judge, convicted the respondents herein for the offence
punishable under Section 326 read with Section 34 of IPC
and sentenced them to undergo rigorous imprisonment (RI)
for three years along with a fine of Rs.500/- each, in default,
to further undergo RI for 3 months.
(f) Against the said order, the respondents moved an
appeal being Criminal Appeal No. 150 of 2006 before the
High Court. The High Court, by impugned judgment dated
13.12.2011, partly allowed the appeal by maintaining the
conviction of the respondents herein and reduced their
sentence to the period already undergone.
(g) Aggrieved by the said order, the State has filed this
appeal by way of special leave.
4Page 5
4) Heard Mr. C.D. Singh, learned counsel for the appellantState and Mr. Lakhan Singh Chauhan, learned counsel for
the respondent-accused.
5) The only point for consideration in this appeal is
whether the High Court is justified in reducing the sentence
to the period already undergone, viz., 14 days, without
providing any cogent reason for the conviction under Section
326 read with Section 34 IPC.
6) In view of the fact that the respondents herein-accused
appellants before the High Court did not challenge the
conviction but only prayed for reduction of sentence
awarded by the trial Court, there is no need to traverse the
details regarding the conviction. The fact remains that these
persons were convicted by the trial Court under Section 326
read with Section 34 IPC and sentenced to RI for three years
along with a fine of Rs. 500/- each.
7) It is stated before the High Court that during the trial
they were in custody for a period of 14 days and the offence
has already been compounded by the complainant and the
appeal is pending since 2006. The High Court, taking note of
5
the above said aspects, reduced their sentence to the period
already undergone.
8) It is relevant to point out that after the registration of
the FIR, the complainant was sent for the medical
examination which was conducted by Dr. Anupam Singh
(PW-9) and after examination, the doctor found the following
two injuries on the person of the complainant:
“a. An incised wound of 15 inches long extending from left
scapula to left shoulder joint bone deep bleeding present.
b. An incised would of 1 inch long inter scapula
bleeding was present. The doctor also opined that injuries
has been caused by hard and sharp object and was of
grievous nature. The doctor also opined that the said
injuries could have supposed a threat to the life of the
complainant.”
It is further seen that on 13.08.2011, the x-ray of the chest
and shoulder of the complainant was examined by Dr.
Sitaram Raghuvanshi (PW-8) who found fracture of left
scapula divided into two pieces extending from glenoid
cavity with dislocation of left shoulder joint. Considering
such injuries, due to which the complainant remained in
hospital for 29 days, we are of the view that the High Court
is not justified in reducing the sentence to the period already
6Page 7
undergone without assigning any acceptable and special
reason for the same. The High Court also failed to take note
of the opinion of the doctor that the injuries inflicted could
have posed threat to the complainant’s life.
9) It is settled principle of law that the punishment should
meet the gravity of the offence committed by the accused
and courts should not show undue sympathy with the
accused persons. This Court has repeatedly stressed the
central role of proportionality in sentencing of offenders in
numerous cases. In Shailesh Jasvantbhai and Another
vs. State of Gujarat and others, (2006) 2 SCC 359, this
Court held that the sentence imposed is not proportionate to
the offence committed, hence not sustainable in the eyes of
law. It was further observed as under:
“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”
7Page 8
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 having regard to the nature of the offence and the
manner in which it was executed or committed etc.”
10) This position was reiterated by a three-Judge Bench
of this Court in Ahmed Hussein Vali Mohammed Saiyed
and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein
it was observed as follows:-
“99.….The object of awarding appropriate sentence should
be to protect the society and to deter the criminal from
achieving the avowed object to 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 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 the interest of
society which needs to be cared for and strengthened by
string of deterrence inbuilt in the sentencing system.
8Page 9
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 and 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 this case, the court further goes to state that meager
sentence imposed solely on account of lapse of time without
considering the degree of the offence will be counter
productive in the long run and against the interest of society.
11) In Jameel vs. State of Uttar Pradesh, (2010) 12
SCC 532, this Court reiterated the principle by stating that
the punishment must be appropriate and proportional to the
gravity of the offence committed. Speaking about the
concept of sentencing, this Court observed thus: -
“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
9Page 10
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.”
12) In Guru Basavaraj @ Benne Settapa vs. State of
Karnataka, (2012) 8 SCC 734, while discussing the concept
of appropriate sentence, this Court expressed that:
“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.”
13) This Court, in Gopal Singh vs. State of Uttarakhand,
JT 2013 (3) SC 444 held as under:-
“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 principle of just punishment is the
bedrock of sentencing in respect of a criminal offence…..”
14) Recently, the above proposition is reiterated in Hazara
Singh vs. Raj Kumar & Ors., 2013 (6) Scale 142.
15) In view of the above, we reiterate that in operating the
sentencing system, law should adopt the corrective
machinery or deterrence based on factual matrix. The facts
10Page 11
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 Courts 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.
16) Though it is stated that both the parties have amicably
settled, in view of the fact that the offence charged under
Section 326 is non compoundable and also in the light of
serious nature of the injuries and no challenge as to
conviction, we are of the view that the High Court is not
11Page 12
justified in reducing the sentence to the period already
undergone.
17) Accordingly, we set aside the order of the High Court
and restore the sentence imposed on the respondents
herein. Consequently, the appeal filed by the State is
allowed and the respondents-accused (A-1 to A-3) are
directed to surrender within a period of four weeks from
today, failing which, the trial Judge is directed to take
appropriate steps for sending them to prison to undergo the
remaining period of sentence.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(M.Y. EQBAL)
NEW DELHI;
JULY 01, 2013.
12
