Holding

The Supreme Court affirmed the conviction under section 302 IPC, set aside the conviction under section 34 IPC, and modified the life sentence to the period already served.

Summary

The appellant Sandeep was convicted by the Sessions Court and affirmed by the High Court for murder under section 302 read with section 34 of the IPC, based on eyewitness testimony that he shot the deceased after being urged by co‑accused. He was acquitted of the Arms Act charges and the co‑accused were also acquitted of the murder charge. The appellant challenged the conviction, arguing lack of specific identification, inconsistencies in witness statements, and that the benefit of doubt granted to the co‑accused should extend to him. The Supreme Court held that the eyewitness evidence and material exhibits sufficiently proved the appellant’s act of shooting, confirming the murder conviction, but found no basis to sustain the conviction under section 34 as he was the sole accused after the others were acquitted. The Court also exercised its power to modify the life sentence, reducing it to the period already served, and ordered the appellant’s release upon payment of the fine.

Issues considered

Whether the conviction under section 34 IPC is sustainable when the appellant is the sole remaining accused after co‑accused were acquitted.
Whether the prosecution evidence establishes guilt beyond reasonable doubt for murder under section 302 IPC.
Whether the acquittal under sections 25 and 27 of the Arms Act affects the murder conviction.
Whether the sentence of rigorous imprisonment for life should be modified to the period already undergone.

Legislation cited

Arms Act, 1959s. 25, s. 27
Indian Penal Code, 1860s. 302, s. 34

Subjects

Section 302 of Penal Code, 1860Section 25/27 of the Arms ActAcquittalConvictionRigorous imprisonment for lifeSentence/SentencingModification of sentenceModification of punishmentExhortation by other accusedPossibility of reformationReformRetribute

Judgment

[2024] 10 S.C.R. 769 : 2024 INSC 771

Sandeep
v.
State of Uttarakhand
(Criminal Appeal No. 2224 of 2014)
14 October 2024
[Pankaj Mithal and R. Mahadevan,* JJ.]

Issue for Consideration
The Sessions Court found the appellant guilty of the offence
u/s.302 r/w. s.34 IPC, convicted and sentenced him to undergo
rigorous imprisonment for life. The judgment of conviction and
sentence passed by the Sessions Court was also affirmed by
the High Court.

Headnotes†
Penal Code,1860 – s.302 r/w. s.34 – Arms Act, 1959 – s.25/27 –
Prosecution case that four persons including appellant shot
victim-deceased dead, when he was sitting in his courtyard –
Trial Court found the appellant guilty of the offence u/s.302
r/w. s.34 IPC, convicted and sentenced him to undergo
rigorous imprisonment for life – Appellant was acquitted for
the offence u/ss.25/27 of the Arms Act – Trial Court acquitted
the other two co-accused and file of one the accused was sent
to Juvenile Court – Aggrieved, the appellant herein filed an
appeal against his conviction before the High Court, which
was dismissed – Correctness:
Held: Upon scrutiny of the depositions of the material witnesses
as well as the exhibits produced by the prosecution, predominantly,
it is evident that on 30.10.1997 at 9.45 p.m., the deceased died
due to the injuries sustained by firing of bullet – P.W.1 and P.W.2
clearly demonstrated in their deposition that the accused were
having weapons and on exhortation by other accused, the appellant
shot the deceased – The source of light in the scene of crime
was explained by P.W.2 in his evidence – The evidence of P.W.3
proved that the material objects were recovered from the scene of
crime – The fact that there was a torch and a lantern is recorded in
Exts.A2 and A11 – The statement of P.W.1 and P.W.2 corroborates
with the materials recovered from the scene of occurrence – It is

* Author
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clearly stated by P.W.4 in his evidence that a country made pistol
12 bore and one empty cartridge were recovered on identification
by the appellant – It is to be seen that even in the FIR, it was
mentioned that the deceased victim was shot – There is no delay
in lodging the complaint, registering the FIR and filing the charge
sheet – In the instant case, the charge of murder framed against
the appellant stood proved – It is proved beyond doubt that the
victim died due to gunshot – The presence of the other accused
with the alleged weapons was not proved and the victim was not
inflicted with any other form of injury – Therefore, the benefit of
doubt granted to the other accused, who were acquitted, cannot
be extended to the appellant – Accordingly, the conviction under
section 302 IPC is confirmed – However, since the appellant
remains the sole accused, there could be no charge u/s.34
IPC against him – Therefore, conviction of appellant u/s.34 IPC
unsustainable. [Paras 14, 16, 17]
Sentence/Sentencing – Appellant convicted u/s.302 r/w. s.34
of IPC and sentenced to undergo rigorous imprisonment for
life – Sentence modified to the period already undergone:
Held: The facts and circumstances clearly disclose that due to
sudden provocation, for not giving jaggery, the accused came
to the house of the deceased and on exhortation by other
accused, the appellant shot the deceased and that, there was
no premeditation in the commission of crime – The appellant
has undergone the sentence for a period of 13 years 6 months
and 20 days without remission and the total sentence of 17
years 1 month and 9 days and that, he has good conduct during
this period; and thus, it is evident that the appellant served
incarceration for more than 14 years and that, he had no bad
antecedent except this – On a perusal of the records also shows
that the appellant belonged to poor economic background and
had been taking care of his entire family; and that there exists
a possibility of reformation – Pertinently, it is to be noted that
the object of punishment is not only to deter the accused from
committing any further crime, but also to reform and retribute;
and the extent of reformation can be derived only by the conduct
of the accused exhibited during his days of retribution – Taking
note of the aggravating and mitigating factors, the sentence of
imprisonment for life awarded by the Sessions Court as affirmed
by the High Court, is modified to the period already undergone
by the appellant. [Para 19.2]
[2024] 10 S.C.R. 771

Sandeep v. State of Uttarakhand

Case Law Cited
Shiva Kumar @ Shiva @ Shivamurthy v. State of Karnataka [2023]
4 SCR 669 : (2023) 9 SCC 817 – followed.
C. Muniappan v. State of Tamil Nadu [2010] 10 SCR 262 : (2010)
9 SCC 567; Navas @ Mulanavas v. State of Kerala [2024] 3 SCR
913 : 2024 SCC OnLine SC 315 – relied on.
Union of India v. V. Sriharan [2015] 14 SCR 613 : (2016) 7
SCC 1 : (2016) 2 SCC (Cri) 695; Swamy Shraddananda v. State of
Karnataka [2008] 11 SCR 93 : (2008) 13 SCC 767 – referred to.
List of Acts
Arms Act, 1959; Penal Code,1860.
List of Keywords
Section 302 of Penal Code, 1860; Section 25/27 of the Arms
Act; Acquittal; Conviction; Rigorous imprisonment for life;
Sentence/Sentencing; Modification of sentence; Modification
of punishment; Exhortation by other accused; Possibility of
reformation; Reform; Retribute.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
2224 of 2014
From the Judgment and Order dated 16.12.2011 of the High Court
of Uttarakhand at Nainital in CRLA No. 65 of 2006
Appearances for Parties
Amicus Curiae
Mrs. Sudha Gupta, R.S. Rathi, Ms. Kusum, Advs. for the Appellant.
Akshat Kumar, Ms. Anubha Dhulia, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
R. Mahadevan, J.
This appeal challenges the judgment and order dated 16.12.2011
passed by the High Court of Uttarakhand at Nainital,1 in Criminal

1 hereinafter shortly referred to as “the High Court”
772 [2024] 10 S.C.R.

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Appeal No.65 of 2006,2 whereby, the High Court dismissed the said
appeal and confirmed the judgment and order dated 16.05.2006
passed by the Additional Sessions Judge / First Fast Track Court,
Roorkee, District Haridwar3 in Sessions Trial No. 208 of 1998.4
2. The appellant Sandeep along with two others viz., Veer Singh and
Dharamveer, was tried for having caused the murder of one Abdul
Hameed on 30.10.1997 at 9.45 p.m., and thereby committed the
offence under section 302 r/w 34 of the Indian Penal Code, 1860
(for short, “the IPC”) and section 25/27 of the Arms Act, 1959 (for
short, “the Arms Act”). The Sessions Court, in the aforesaid Sessions
Trial No.208 of 1998, found the appellant guilty of the offence under
section 302 r/w Section 34 IPC, convicted and sentenced him to
undergo rigorous imprisonment for life with fine of Rs.1,000/-, in
default to undergo rigorous imprisonment for a further period of three
months, while acquitting the other two co-accused. The Sessions
Court in the connected Sessions Trial No.209 of 1998,5 acquitted the
appellant of the offence under section 25/27 of the Arms Act. Feeling
aggrieved and being dissatisfied with the judgment of conviction and
sentence passed by the Sessions Court in Sessions Trial No.208 of
1998, the appellant went on Criminal Appeal No.65 of 2006, which
ended in dismissal by the impugned judgment and order dated
16.12.2011 passed by the High Court.
3. Shorn off unnecessary details, the case of the prosecution is that
on 31.10.1997, one Kale Hasan (P.W.1 / complainant) S/o Abdul
Hameed, resident of village Dosni, lodged a written report (Ext.A-1) to
Police Station Laksar, District Haridwar, alleging that on the midnight
of 30.10.1997, while his father Abdul Hameed (deceased) and his
mother Mangti were sitting in their courtyard and were talking to
each other, at about 09:45 p.m., four persons viz., Veer Singh S/o
Jaswant Singh, Mintu S/o Molhar, Dharamveer S/o.Brhampal and
Sandeep (appellant herein), all residents of Dosni village, came
there and told to his father that they would teach him a lesson for
refusing to give them jaggery (GUR) and shot at his father. On hearing

2 Sandeep v. State of Uttarakhand
3 hereinafter shortly referred to as “the Sessions Court”
4 State v. Veer Singh and two others
5 State v. Sandeep
[2024] 10 S.C.R. 773

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the sound of the gun-shot, the complainant, along with Gufran Ali
(P.W.2) and Naseem, reached the courtyard and saw that all the
four accused persons, after shooting, were fleeing away from the
scene of crime. Thereafter, the injured Abdul Hammed was taken
to the Government Hospital, Laksar for treatment, where the doctor
declared him dead.
4. On the basis of the written report, Chik report (Ext.A-13) was
prepared and a case in Laskar Police Station Crime No.185
of 1997 was registered against all the four accused for the offence
under section 302 IPC. The Sub Inspector of Police Satish Verma,
during the course of investigation, inspected the scene of crime
and prepared inquest report (Ext.A4) on the body of the deceased
and site plan (Ext.A9). On 31.10.1997, the Investigating Officer
recorded the statements of the witnesses; recovered one country-
made pistol 12 bore and one empty cartridge concealed in the field
of Dharmdas under a transformer, on pointing out by the appellant;
and prepared recovery memo (Ext.A3) and plan for the place of
recovery (Ext A10). That apart, the Investigating Officer collected
bloodstained soil and plain soil (Ext.A5) and took possession of
the articles viz., a torch with three batteries (Ext.A2), a bloodstain
cot (Ext.A6), a quilt-cover, a cotton blanket and a quilt (Ext.A7) and
a lantern (Ext.A11). Thereafter, the body of the deceased Abdul
Hameed along with inquest report (Ext.A4) was sent for post-
mortem. Dr.R.K.Verma, Physician (P.W.7) conducted post-mortem on
31.10.1997 and gave autopsy report; and according to his opinion,
the cause of death was due to shock and hemorrhage as a result
of fire arm ante mortem injuries; and that the wound of entry could
be caused by one bullet. In the meanwhile, the Investigating Officer
sent the samples for chemical analysis and obtained a report from
Forensic Science Lab, Agra (Ext.A18).
5. After completion of investigation, the Investigating Officer filed charge
sheet (Ext.A8) on 27.12.1997 against all the four accused for the
offence under section 302 IPC. Upon getting sanction (Ext.A17) from
the District Magistrate, Haridwar, charge sheet (Ext.A15) was filed
against the appellant herein, for the offence under section 25/27 of
the Arms Act. After committal, the learned Additional District Judge,
Roorkee, framed charge against all the accused for the offence under
section 302 r/w 34 IPC. The file relating to accused Mintu was sent
to Juvenile Court, vide order dated 01.01.2003.
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6. Before the Sessions Court, in order to prove the guilt of the
accused viz., Veer Singh, Dharamveer and the appellant herein, the
prosecution examined P.W.1 to P.W.9 witnesses and marked Ext.
A1 to A17 documents, besides material objects. However, no oral
and documentary evidence were let in, on the side of the accused.
During section 313 Cr.P.C questioning, the accused pleaded not
guilty and claimed trial.
7. After considering the evidence on record, the Sessions Court as
already noticed in paragraph 2 supra, found the appellant guilty of the
offence under section 302 r/w 34 IPC, convicted him and sentenced
him for the same, while acquitting the other two co-accused, by
the judgment dated 16.05.2006 in Sessions Trial No.208 of 1998.
However, the appellant was found not guilty of the offence under
section 25/27 of the Arms Act and was acquitted of the same by
the same judgment dated 16.05.2006, but in Sessions Trial No.209
of 1998. The judgment of conviction and sentence passed by the
Sessions Court in Sessions Trial No.208 of 1998 was also affirmed
by the High Court. Therefore, the appellant is before us with the
present Criminal Appeal.
8. This Court, by order dated 27.01.20206 disposed of Interlocutory
Application No.60285/2019 in Criminal Appeal No.2224/2014 filed
by the appellant by releasing him on bail, on certain terms.
9. We have heard Mrs. Sudha Gupta, learned counsel appointed to
espouse the cause of the appellant and Mr. Akshat Kumar, learned
counsel for the respondent – State and also perused the materials
on record.
10. The learned counsel appearing on behalf of the appellant strenuously
argued that as per the prosecution story, four persons were involved
in the crime and they were charge sheeted for the same offence;
in the FIR, there was no specific role assigned to the appellant and
all the accused played identical role; and after joint trial, two co-
accused were acquitted of the offence under section 302 r/w 34 IPC.
While so, the Sessions Court ought to have extended the benefit

6 Having heard learned counsel and perusing the records, we order that the appellant be released on bail
in Sessions Trial No. 208 of 1998 on the usual conditions to the satisfaction of the concerned trial court.
The interlocutory application for bail stands disposed of.
Hearing of the appeal expedited.
[2024] 10 S.C.R. 775

Sandeep v. State of Uttarakhand

of doubt and acquitted the appellant as well. The learned counsel
further submitted that the appellant was acquitted of the charge
under section 25/27 of the Arms Act arising out of the same crime,
and hence, the offence under section 302 r/w 34 IPC is improbable.
10.1. Taking us through the evidence led by the prosecution, the
learned counsel argued that the prosecution projected P.W.1 and
P.W.2 as eye-witnesses to the occurrence; it is their deposition
that they saw that the deceased was shot and got injuries, by
which he was bleeding; and they took the deceased to hospital;
but they did not get bloodstains on their clothes. That apart, the
occurrence happened on 30.10.1997 at 9.45 p.m., however,
source of light at the scene of crime was not mentioned in the
FIR. Though P.W.1 and P.W.2 stated in their evidence that
all the accused were armed with weapons in their hands, the
FIR did not disclose as to which accused was in possession
of which weapon and as to who shot the bullet. The fact of
provoking and the fact of possession of the weapons by the
accused persons were not mentioned in the statement recorded
under section 161 Cr.P.C., which were also accepted by the
Investigating officer in his deposition. Thus, it was submitted
that these discrepancies / inconsistencies / contradictions in
the case of the prosecution falsify the testimonies of P.W.1 and
P.W.2 qua involvement of the appellant in the crime.
10.2. It was further argued by the learned counsel that the only eye-
witness to the occurrence viz., Mangti - wife of the deceased
and the Sub Inspector of Police, who conducted investigation,
were not examined, which are fatal to the prosecution case. She
further submitted that the motive for murder i.e., the accused
demanding jaggery, the deceased denying the same and the
accused committing the crime, appears to be very vague.
Therefore, the learned counsel submitted that the prosecution
has not established the charge framed against the appellant
beyond reasonable doubt. Without analysing the evidence in
proper perspective, the Sessions Court erroneously convicted
the appellant alone and sentenced him for the offence under
section 302 r/w 34 IPC, and the same was also affirmed by
the High Court. Therefore, the learned counsel prayed that
the judgments of conviction and sentence imposed on the
appellant should be set aside.
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10.3. In the alternative, it was submitted by the learned counsel for the
appellant that the appellant has already suffered incarceration
for more than 14 years and therefore, a lenient view may be
taken, qua sentence awarded by the Courts below.
11. Per contra, the learned counsel appearing on behalf of the
respondent – State contended that it is proved from the evidence of
P.W.1 and P.W.2 that the appellant shot the deceased and escaped
from the scene of occurrence. PW1 specifically stated that he had seen
the appellant, while firing bullet shot on his father; and after causing
bullet shot, all the accused persons ran away. P.W.2 - Gufran Ali also
clearly stated that it was only the appellant who shot the deceased
and not the other co-accused. Adding further, the learned counsel
submitted that P.W.2 deposed that the accused Veer Singh having
a spear, appellant having a country-made pistol and Dharamveer
and Mintu having lathis, came to the house of the deceased and on
exhortation given by the co-accused, the appellant fired bullet shot
by country-made pistol on the deceased which hit on his right chest
and arm. PW4 Akbar stated in his evidence that the country-made
pistol was recovered by the police on pointing out by the appellant.
It is also proved from the evidence of P.W.2 that at the time of
occurrence, there was sufficient source of light for identification of
the accused. Hence, the charge framed against the appellant was
duly proved by the prosecution.
11.1. With respect to non-examination of some witnesses, it was
submitted by the learned counsel that such lapse is insufficient
to discard the ocular evidence led by the prosecution.
11.2. Thus, according to the learned counsel, upon proper
appreciation of the material evidence, the Sessions Court
rightly convicted the appellant of the offence under section 302
r/w 34 IPC as also affirmed by the High Court and hence, there
is no requirement to interfere with such concurrent findings
rendered by the Courts below.
12. As pointed out earlier, in connection with murder of the father of the
complainant on 30.10.1997 at 9.45 p.m., the appellant was subjected
to criminal prosecution, along with three accused viz., Veer Singh,
Mintu and Dharamveer for the offence under section 302 r/w 34 IPC.
By order dated 01.01.2003, the case pertaining to the accused Mintu
was remitted to the Juvenile Court. The Sessions Court convicted
[2024] 10 S.C.R. 777

Sandeep v. State of Uttarakhand

the appellant for the said offence, while acquitting the other two
accused. Be it noted, for the same crime, the appellant was also
charge sheeted for the offence under section 25/27 of the Arms Act,
but he was acquitted of the same.
13. In order to appreciate the contentions raised on behalf of the
respective parties, let us examine the evidence let in before the
Sessions Court.
13.1. The prosecution heavily relied on the evidence of P.W.1 and
P.W.2, who are said to be eye-witnesses to the occurrence.
PW1 Kale Hasan – complainant / son of the deceased,
deposed that on 30.10.1997 at about 9.45 p.m., his parents
viz., Abdul Hameed and Mangti Devi, were sitting in their
Baithak Chappar (courtyard) and talking with each other;
the four accused persons came there; the appellant had a
katta in his hand, Veer Singh had a ballam, and Dharamveer
and Mintu had sticks in their hands; they came to the door
of Baithak; Dharamveer, Mintu and Veer Singh asked the
appellant to shoot his father and teach him a lesson for not
giving jaggery; the appellant fired bullet on his father which
hit on his chest and left arm; on hearing the sound of bullet
shot, P.W.2, Gufran Ali and Nasim immediately reached the
spot; they saw the accused persons fleeing away, after firing;
they chased them, but did not catch them; and all the four
accused ran away. He further stated in his deposition that he,
Gufran Ali and Nasim took the deceased to Laksar Hospital
where the doctor declared him dead and asked to take him to
Police Station; then, they came to Police Station and narrated
the incident to Daroga, who advised them to lodge a report
against the accused persons; and he (P.W.1) had written
report (Ext.A1) and given it to Police Station.
13.2. P.W.2 Gufran Ali / grandson of the deceased corroborated the
evidence of P.W.1. He categorically stated that all the accused
were armed with weapons; the appellant shot the deceased
by a katta which hit on his chest; and he had a torch in his
hand; and he tried to hold the accused, but they fled away.
13.3. P.W.3 Furkan stated about the material objects, such as,
lantern, battery having 3 cells, one sole quilt, Dutai and Khes,
etc., recovered in the scene of occurrence.
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13.4. P.W.4 Akbar deposed that he was one of the members of the
police party and in his presence, on pointing out by the appellant,
one country made pistol, concealed in the sugarcane field of
Dharamdas under a transformer, was recovered.
13.5. P.W.5 Niyamul, a witness of inquest report (Ext.A4) inter alia
stated in his evidence that body of the deceased was kept in
a white cloth, sealed and sent for post-mortem.
13.6. P.W.6 Jagat Kumar Singh – Investigating Officer explained
about the conduct of investigation. According to him, on receipt
of the report, a case was registered against the accused for
the offence under section 302 IPC; inquest report (Ext.A4)
was prepared; after inspection, site plan (Ext.A9) was marked;
statements of the witnesses were recorded; recovery of the
material objects was made; samples of bloodstained soil and
plain soil were collected; body of the deceased was sent for
post-mortem; after investigation, charge sheet (Ext.A8) was
filed against four accused under section 302 IPC; and upon
getting necessary sanction, charge sheet (Ext.A15) was filed
against the appellant for the offence under section 25/27 of
the Arms Act.
13.7. P.W.7- Dr. R.K. Verma, Physician deposed that he conducted
post mortem on the body of the deceased Abdul Hameed, aged
70 years, on 31.10.1997 at 2:30 p.m. and prepared autopsy
report, with the following ante mortem injuries:-
(i) Firearm wound of entry 4cm x 2cm muscle deep
on medial side of right upper arm 9 cm below the
axilla. Blackening and tattooing present around the
wound. Margins lacerated and inverted. Two pellets
were recovered from the wound.
(ii) Firearm wound of entry 3 cm x 2 cm chest cavity
deep on lateral side of right chest 11cm below the
axilla in mid axillary line. Tattooing and blackening
present around the wound in an area of l cm. Margins
lacerated and inverted. 5th and 5th ribs are fractured.
He further stated in his evidence that the cause of death was due to
shock and hemorrhage as a result of firearm ante mortem injuries and
the death of the deceased could have been caused within 24 hours
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prior to the time of conducting postmortem; and that both wounds
of entry could be caused by one bullet.
13.8. P.W.8 Constable Ramdhan Singh deposed that based on the
report of the complainant, he prepared Chik report and entered
the case in the G.D.
13.9. P.W.9 Constable Balraj Singh was examined to prove the
investigation conducted by the Sub Inspector of Police Satish
Verma, who did not come forward to let in evidence. In view
of non-examination of the said Officer, the Sessions Court
doubted about the sanction accorded by the District Magistrate
and accordingly, acquitted the appellant of the charge under
section 25/27 of the Arms Act.
14. Upon scrutiny of the depositions of the material witnesses as well as
the exhibits produced by the prosecution, predominantly, it is evident
that on 30.10.1997 at 9.45 p.m., the deceased died due to the injuries
sustained by firing of bullet. P.W.1 and P.W.2 clearly demonstrated
in their deposition that the accused were having weapons and on
exhortation by other accused, the appellant shot the deceased. The
source of light in the scene of crime was explained by P.W.2 in his
evidence. The evidence of P.W.3 proved that the material objects
were recovered from the scene of crime. The fact that there was a
torch and a lantern is recorded in Exts.A2 and A11. The statement
of P.W.1 and P.W.2 corroborates with the materials recovered from
the scene of occurrence. It is clearly stated by P.W.4 in his evidence
that a country made pistol 12 bore and one empty cartridge were
recovered on identification by the appellant. It is to be seen that
even in the FIR, it was mentioned that the deceased victim was
shot. There is no delay in lodging the complaint, registering the FIR
and filing the charge sheet.
15. Though the learned counsel for the appellant pointed out certain
deficiencies / inconsistencies / contradictions in the evidence let in
by the prosecution, they being minor in nature, cannot be considered
as remissness in the investigation enabling the appellant’s acquittal,
particularly, when the appellant was present with a gun in the scene
of occurrence, when the gun and empty cartridge were recovered
based on the information given by the appellant, when the firing
was witnessed by P.W.1 and P.W.2, and when the fact that the
victim died due to wounds inflicted by gunshot, stood proved by
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the evidence of P.W.7, Doctor, who performed the autopsy. The law
on minor discrepancies which does not affect the basic case of the
prosecution, is well settled. This Court in C. Muniappan v. State of
Tamil Nadu7 has stated as under:
“85. It is settled proposition of law that even if there are
some omissions, contradictions and discrepancies, the
entire evidence cannot be disregarded. After exercising care
and caution and sifting through the evidence to separate
truth from untruth, exaggeration and improvements, the
court comes to a conclusion as to whether the residuary
evidence is sufficient to convict the accused. Thus, an
undue importance should not be attached to omissions,
contradictions and discrepancies which do not go to the
heart of the matter and shake the basic version of the
prosecution›s witness. As the mental abilities of a human
being cannot be expected to be attuned to absorb all the
details of the incident, minor discrepancies are bound
to occur in the statements of witnesses. (Vide Sohrab v.
State of M.P. [(1972) 3 SCC 751 : 1972 SCC (Cri) 819 :
AIR 1972 SC 2020], State of U.P. v. M.K. Anthony [(1985)
1 SCC 505 : 1985 SCC (Cri) 105], Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat [(1983) 3 SCC 217 : 1983
SCC (Cri) 728 : AIR 1983 SC 753], State of Rajasthan
v. Om Prakash [(2007) 12 SCC 381 : (2008) 1 SCC (Cri)
411], Prithu v. State of H.P. [(2009) 11 SCC 588 : (2009) 3
SCC (Cri) 1502], State of U.P. v. Santosh Kumar [(2009) 9
SCC 626 : (2010) 1 SCC (Cri) 88] and State v. Saravanan
[(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580].)”
16. That apart, the acquittal of the appellant under section 25/27 of the
Arms Act on a technical ground that the order of sanction by the
District Magistrate was rejected as there was no date in the order,
cannot come to the aid of the appellant as the extent of proof and
procedures for prosecution are different. In the instant case, the charge
of murder framed against the appellant stood proved, as narrated
above. Insofar as the claim that when the other accused have been

7 [2010] 10 SCR 262 : (2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402 : 2010 SCC OnLine SC 946 at page
596
[2024] 10 S.C.R. 781

Sandeep v. State of Uttarakhand

acquitted for the same offence, the appellant cannot be convicted,
we do not agree with the same. It is proved beyond doubt that the
victim died due to gunshot. The presence of the other accused with
the alleged weapons was not proved and the victim was not inflicted
with any other form of injury. Therefore, the benefit of doubt granted
to the other accused, who were acquitted, cannot be extended to
the appellant. Accordingly, the conviction under section 302 IPC is
confirmed.
17. Insofar as the conviction under section 34 IPC, there is a contradiction
in the evidence of the Investigating Officer and the other witnesses on
instigation. P.W.1 and P.W.2 had deposed in the court that the other
accused instigated the appellant to fire the shot, but on the contrary,
the Investigating Officer had deposed that during investigation, it was
revealed by the complainant and the other witness that the appellant
fired on his own. The Sessions Court did not accept the evidence
of P.W.1 and P.W.2 with regard to the charge framed against other
accused and acquitted them. Considering the fact that for a person
to be convicted under section 34, there must be an involvement of
two or more persons with common intention to commit the crime.
Mere presence of the accused at the scene of occurrence is not
sufficient. In the present case, after the acquittal of the other accused
with a finding that there was nothing in the FIR or statement under
section 161 to sustain the charge under section 34 IPC, the appellant
remains the sole accused and there could be no charge under
section 34 against him. Therefore, we are of the opinion that the
conviction of the appellant under section 34 IPC by the Sessions
Court as confirmed by the High Court is unsustainable.
18. For the reasons stated above, the concurrent finding recorded by
the Sessions Court as affirmed by the High Court that the appellant
was found guilty of the offence under section 302 IPC is confirmed.
However, the appellant is acquitted of the charge under section 34
IPC and the judgments of the Courts below, insofar as convicting
him for the same, are set aside.
19. As far as the sentence is concerned, considering the gravity and
nature of the offence and all other relevant factors, the Courts can
modify the punishment or reduce / enhance the period of sentence
imposed on the accused. At this juncture, it will be apposite to refer
to some judgments of this Court. The Constitutional Bench of this
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Court (majority view) in Union of India v. V.Sriharan,8 has held that
“there is a power which can be derived from IPC to impose a fixed
term sentence or modified punishment which can only be exercised
by the High Court or in the event of any further appeal, by the
Supreme Court and not by any other court”. Placing reliance on the
said decision of the Constitutional Bench, this Court in Shiva Kumar
@ Shiva @ Shivamurthy v. State of Karnataka,9 has observed as
follows:
“14…We have no manner of doubt that even in a case
where capital punishment is not imposed or is not
proposed, the constitutional courts can always exercise
the power of imposing a modified or fixed-term sentence
by directing that a life sentence, as contemplated by
“secondly” in Section 53 IPC, shall be of a fixed period of
more than fourteen years, for example, of twenty years,
thirty years and so on. The fixed punishment cannot be
for a period less than 14 years in view of the mandate
of Section 433-A Cr.PC.”
19.1. In a recent decision in Navas @ Mulanavas v. State of Kerala,10
a Full Bench of this Court, after referring to the judgments in
Swamy Shraddananda v. State of Karnataka11 and in V.Sriharan
(supra), has emphasised that “while the maximum extent of
punishment of either death or life imprisonment is provided
for under the relevant provisions, it will be for the courts to
decide if in its conclusion, the imposition of death may not be
warranted, what should be the number of years of imprisonment
that would be judiciously and judicially more appropriate to
keep the person under incarceration, by taking into account,
apart from the crime itself, from the angle of the commission
of such crime or crimes, the interest of the society at large or
all other relevant factors which cannot be put in any straitjacket
formulae”. Upon conducting a detailed survey of 27 cases, it
was ultimately stated in Paragraph 59 as follows:

8 [2015] 14 SCR 613 : (2016) 7 SCC 1 : (2016) 2 SCC (Cri) 695
9 [2023] 4 SCR 669 : (2023) 9 SCC 817
10 [2024] 3 SCR 913 : 2024 SCC OnLine SC 315
11 [2008] 11 SCR 93 : (2008) 13 SCC 767
[2024] 10 S.C.R. 783

Sandeep v. State of Uttarakhand

“59.A journey through the cases set out hereinabove
shows that the fundamental underpinning is the
principle of proportionality. The aggravating and
mitigating circumstances which the Court considers
while deciding commutation of penalty from death to
life imprisonment, have a large bearing in deciding the
number of years of compulsory imprisonment without
remission, too. As a judicially trained mind pores
and ponders over the aggravating and mitigating
circumstances and in cases where they decide to
commute the death penalty, they would by then have
a reasonable idea as to what would be the appropriate
period of sentence to be imposed under the Swamy
Shraddananda (supra) principle too. Matters are not
cut and dried and nicely weighed here to formulate
a uniform principle. That is where the experience of
the judicially trained mind comes in as pointed out in
V. Sriharan (supra). Illustratively in the process of
arriving at the number of years as the most appropriate
for the case at hand, which the convict will have to
undergo before which the remission powers could be
invoked, some of the relevant factors that the courts
bear in mind are : - (a) the number of deceased who
are victims of that crime and their age and gender;
(b) the nature of injuries including sexual assault if any;
(c) the motive for which the offence was committed;
(d) whether the offence was committed when
the convict was on bail in another case; (e) the
premeditated nature of the offence; (f) the relationship
between the offender and the victim; (g) the abuse of
trust if any; (h) the criminal antecedents; and whether
the convict, if released, would be a menace to the
society. Some of the positive factors have been,
(1) age of the convict; (2) the probability of reformation
of convict; (3) the convict not being a professional
killer; (4) the socioeconomic condition of the accused;
(5) the composition of the family of the accused and
(6) conduct expressing remorse. These were some
of the relevant factors that were kept in mind in the
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cases noticed above while weighing the pros and
cons of the matter. The Court would be additionally
justified in considering the conduct of the convict
in jail; and the period already undergone to arrive
at the number of years which the Court feels the
convict should, serve as part of the sentence of life
imprisonment and before which he cannot apply for
remission. These are not meant to be exhaustive but
illustrative and each case would depend on the facts
and circumstances therein.”
19.2. We shall thus, consider the sentence imposed on the appellant,
in the light of the aforesaid guiding principles. The facts and
circumstances highlighted above would clearly disclose that
due to sudden provocation, for not giving jaggery, the accused
came to the house of the deceased and on exhortation by
other accused, the appellant shot the deceased and that,
there was no premeditation in the commission of crime. As
already stated above, the appellant was acquitted of the
charge under section 25/27 of the Arms Act, arising out of the
same crime; and that, he was convicted only for the offence
under section 302 r/w 34 IPC, whereas the co-accused were
acquitted of the said charge. Further, the certificate dated
08.12.2019 received from the Jailor, District Jail, Haridwar,
reveals that the appellant has undergone the sentence for a
period of 13 years 6 months and 20 days without remission
and the total sentence of 17 years 1 month and 9 days and
that, he has good conduct during this period; and thus, it is
evident that the appellant served incarceration for more than
14 years and that, he had no bad antecedent except this.
On a perusal of the records also shows that the appellant
belonged to poor economic background and had been taking
care of his entire family; and that there exists a possibility of
reformation. Pertinently, it is to be noted that the object of
punishment is not only to deter the accused from committing
any further crime, but also to reform and retribute; and the
extent of reformation can be derived only by the conduct of
the accused exhibited during his days of retribution. Taking
note of the above aggravating and mitigating factors, we are of
the view that it would meet the ends of justice, if the sentence
[2024] 10 S.C.R. 785

Sandeep v. State of Uttarakhand

of imprisonment for life awarded by the Sessions Court as
affirmed by the High Court, is modified to the period already
undergone by the appellant.
20. Accordingly, we modify the sentence awarded by the Courts below
to the period already undergone by the appellant. However, we
clarify that the appellant shall pay the fine amount imposed by the
Sessions Court, if not paid already. He shall be set at liberty if not
required in any other case. The bail bond executed by the appellant
stands discharged.
21. Resultantly, this Criminal Appeal stands partly allowed to the extent
as indicated above.

Result of the Case: Appeal Partly Allowed.

†
Headnotes prepared by: Ankit Gyan