Supreme Court of India
STATE OF M.P.versusKASHIRAM & ORS.
- Citation
- 2009 INSC 91
- Decided
- 2 February 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
An accused charged under Section 307 IPC cannot be acquitted merely because the injury inflicted is simple hurt; conviction depends on the intention or knowledge of the accused, not the nature of the injury.
Summary
The respondents, driven by a prior enmity, tied and assaulted the victim, pressing his mouth and chopping off the lower part of his left leg. The trial court convicted them under Section 307 read with Sections 148 and 149 of the Indian Penal Code and sentenced each to five years' rigorous imprisonment. The High Court altered the conviction to Section 326 r/w 149, reducing the sentence to time already served, holding that the injury was not sufficient to cause death. On appeal, the Supreme Court held that for a conviction under Section 307 it is not essential that the injury be capable of causing death; the decisive factor is the accused's intention or knowledge, irrespective of the nature of the injury. Consequently, the Court restored the original conviction under Section 307 and the sentences imposed by the trial court, allowing the appeal.
Issues considered
- Whether an injury classified as simple hurt can support a conviction under Section 307 IPC (attempt to murder).
- Whether the nature of the injury or the intention/knowledge of the accused is the determinative factor for Section 307.
- Whether the High Court erred in reducing the conviction to Section 326 and the sentence.
Legislation cited
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 307, s. 326
Subjects
Section 307 IPCattempt to murderintentionknowledgesimple hurtsentencingappellate jurisdictioncriminal law
Judgment
[2009] 1 S.C.R. 806
A STATE OF M.P.
V.
KASHIRAM & ORS.
(Criminal Appeal No. 191 of 2009)
FEBRUARY 2, 2009
8
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.] ...
Penal Code, 1860 - s. 307 - Applicability of - Discussed
c - Held: An accused charged under s.307 cannot be acquitted
merely because injuries inflicted on the victim were in the
nature of a simple hurt - Determinative question is intention
or knowledge, as the case may be, and not nature of the injury.
D Sentence/Sentencing - Just and appropriate sentence -
Duty of Court - Held: Courts required to award proper
sentence having regard to nature of the offence and the
manner in which it was executed or committed - Undue
sympathy to impose inadequate sentence would harm the
justice system and undermine public confidence in the
E
efficacy of law
According to the prosecution, on account of an
earlier enmity, the respondents tied the hands and legs
of PWS, pressed his mouth with the help of clothes and
F thereafter chopped off the lower part of his left leg. The
respondents were allegedly armed with rifle, sticks and
axe. The trial court held the respondents guilty under
s.307 rlw ss.149 and 148 IPC and sentenced each of them
to undergo rigorous imprisonment for five years for the
·G main offence and 6 months rigorous imprisonment for
the ancillary offences. On appeal, the High Court held that .........
-,-r-
chopping of the leg from the body could not be treated
sufficient to cause death and appropriate conviction
would thus be under s.326 r/w s.149 IPC and thereafter
H 806
STATE OF M.P. v. KASHIRAM & ORS. 807
...,._ reduced the custodial sentence to the period already A
undergone.
In appeal to this Court, it was contended that the
High Court had completely overlooked the gruesome
nature of the offence and the evidence of PW1, the Doctor
B
that the injury could have caused death.
---.. Allowing the appeal, the Court
,, HELD: 1.1. To justify a conviction under s.307 IPC, it
is not essential that bodily injury capable of causing c
death should have been inflicted. Although the nature of
injury actually caused may often give considerable
assistance in coming to a finding as to the intention of
the accused, such intention may also be deduced from
.., other circumstances, and may even, in some cases, be D
ascertained without any reference at all to actual wounds.
The Section makes a distinction between an act of the
accused and its result, if any. Such an act may not be
attended by any result so far as the person assaulted is
concerned, but still there may be cases in which the
E
culprit would be liable under this Section. It is not
necessary that the injury actually caused to the victim of
the assault should be sufficient under ordinary
circumstances to cause the death of the person
A assaulted. What the Court has to see is whether the act,
irrespective of its result, was done with the intention or F
knowledge and under circumstances mentioned in the
Section. An attempt in order to be criminal need not be
the penultimate act. It is sufficient in law, if there is present
an intent coupled with some overt act in execution
thereof. [Para 9) (814-E-H] G
'·
"'I 1.2. The Court has to see whether the act, irrespective
of its result, was done with the intention or knowledge
and under circumstances mentioned in s.307. Therefore,
an accused charged under s.307 IPC cannot be acquitted H
808 SUPREME COURT REPORTS [2009] 1 S.C.R.
A merely because the injuries inflicted on the victim were
in the nature of a simple hurt. [Para 10] [815-A-C]
1.3. Whether there was intention to kill or knowledge
that death will be caused is a question of fact and would
depend on the facts of a given case. The circumstances
8
that the injury inflicted by the accused was simple or
minor will not by itself rule out application of s.307 IPC.
The determinative question is intention or knowledge, as
the case may be, and not nature of the injury. [Para 12]
...
C [815-E]
State of Maharashtra v. Bairam Bama Patil and Ors.
(1983) 2 SCC 28; Girija Shanker v. State of Uttar Pradesh
(2004) 3 SCC 793; R. Parkash v. State of Karnataka JT
(2004) 2 SC 348 and State of Madhya Pradesh v. Saleem
D @ Chamaru & Anr. (2005) (5) SCC 554, relied on.
2.1. 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
E 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.
[Para 13] [815-F-G]
F 2.2. After giving due consideration to the facts and
circumstances of each case, for deciding just and
appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances in
which a crime has been committed are to be delicately
G balanced on the basis of really relevant circumstances in
a dispassionate manner by the Court. Such act of
balancing is indeed a difficult task. No formula of a .,,.._
foolproof nature is possible that would provide a
reasonable criterion in determining a just and appropriate
H punishment in the infinite variety of circumstances that
STATE OF M.P. v. KASHIRAM & ORS. 809
..
-_ may affect the gravity of the crime. In the absence of any
foolproof formula which may provide any basis for
A
reasonable criteria to correctly assess various
circumstances germane to the consideration of gravity of
crime, the discretionary judgment in the facts of each
case, is the only way in which such judgment may be B
equitably distinguished. [Para 14] [815-H; 816-A-D]
-·-j.. 2.3. The object should be to protect the society and
to deter the criminal in achieving the avowed object of
law by imposing appropriate sentence. It is expected that
the Courts would operate the sentencing system so as
c
to impose such sentence which reflects the conscience
of the society and the sentencing process has to be stern
where it should be. [Para 15] [816-E]
2.4. Imposition of sentence without considering its D
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 E
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
meager sentences or taking too sympathetic view merely
A·
on account of lapse of time in respect of such offences F
will be result-wise counter productive in the long run and
against societal interest which needs to be cared for and
strengthened by string of deterrence inbuilt in the
sentencing system. [Para 16] [816-F-H]
2.5. The Court will be failing in its duty if appropriate G
....
punishment is not awarded for a crime which has been
~
committed not only against the individual victim but also
against the society to which the criminal and victim
belong. The punishment to be awarded for a crime must
not be irrelevant but it should conform to and be H
810 SUPREME COURT REPORTS [2009] 1 S.C.R.
A consistent with the atrocity and brutality with which the
crime has been perpetrated, the enormity of the crime
warranting public abhorrence and it should "respond to
the society's cry for justice against the criminal". [Para
17] [817-A-8]
B
Sevaka Perumal etc. v. State of Tamil Naidu AIR (1991)
SC 1463, relied on.
Dennis Counc/e MCGDautha v. State of Ca//ifornia 402
US 183: 28 L.D. 2d 711, referred to. ...
c
3.1. In the present case, the High Court completely
overlooked the evidence on record and the impugned
judgment passed by it shows total non-application of
mind. PW1 had noted that 1/3 of the leg was chopped off
D below the knee. He had categorically stated that the injury
could have caused death. The Radiologist (PW14) clearly
stated that the aforesaid chopping of the leg was
grievous in nature. With some strange logic the High
Court observed that merely on the testimony of PW1 it
E cannot be assumed that the injury was sufficient to cause
death in ordinary course of nature. The evidence of PW5
clearly shows the gruesome nature of the attack and the
intention of the accused persons. The trial court noticed
that the leg was chopped out between the knee and the
F ankle. [Paras 6 and 7] [813-D-H; 814-A]
3.2. It is baffling as to how the High Court uniformly
directed reduction of sentence to the period already
undergone. There was no similarity in the period of
sentence already suffered by the accused persons when
G the High Court passed the impugned judgment. [Paras
18 and 19] [817-C-F]
3.3. Looked at from any angle, the judgment of the
High Court is clearly unsustainable. The judgment of the
H trial court stands restored so far as conviction as well as
STATE OF M.P. v. KASHIRAM & ORS. 811
the sentences are concerned. [Para 20) (817-G] A
Case Law Reference
(1983) 2 sec 28 relied on Para 11
(2004) 3 sec 793 relied on Para 11
B
JT (2004) 2 SC 348 relied on Para 11
(2005) (5) sec 554 relied on Para 11
~-
AIR (1991) SC 1463 relied on Para 13
402 US 183: 28 L.D. 2d 711 referred to Para 14 c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.191 of 2009.
From the Judgment and Order dated 2.5.2006 of the High
Court of Madhya Pradesh at Jabalpur in Crl. Appeal No. 851 D
-t-
of 1990.
Vibha Datta Makhija for the Appellant.
Shiv Sagar Tiwari for the Respondents.
E
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J.1. Leave granted.
2. Challenge in this appeal is to the judgment rendered by
a learned Single Judge of the Madhya Pradesh High Court. The
F
respondents faced trial for alleged commission of offences
~
,
punishable under Section 307 read with Sections 149 and 148
of the Indian Penal Code, 1860 (in short the'IPC'). Learned
Additional Sessions Judge, Shihore, found the accused
respondents guilty and sentenced each to undergo rigorous
imprisonment for five years with fine and 6 months rigorous G
imprisonment for the other two offences. By the impugned
judgment the High Court held that the appropriate conviction
would be under Section 326 read with Section 149 IPC.
Custodial sentence was reduced to the period already
undergone, while the fine amount of Rs.500/- was enhanced to H
812 SUPREME COURT REPORTS [2009] 1 S.C.R.
A Rs.20,000/-.
3. Prosecution version as unfolded during trial is as
follows:
On 21.7.1987 at about 4 O'clock in the evening the
B complainant- victim Jai Singh (PW5) was at the grass field for
the purpose of grazing the cattle. The wife of respondent Lila
Kishan and wife of Bapulal came there to collect some leaves
in the field. Thereafter on account of some earlier enmity the
respondents armed with rifle, sticks and axe came there and
c the accused Lilakishan, Bapu and Kashiram caught hold of the
said victim while other accused Jagannath and Amar Singh tied
his hands and legs by turban and accused Laakhan with the
help of clothes pressed his mouth. Thereafter, his legs were
caught by the respondents Bapu and Lila Kishan, while
0 Kashiram chopped off the lower part of the left leg. Gangaram
stood there with rifle. The victim sustained injuries on his back,
right eye and left leg. After the incident the accused persons
ran away from the spot. However, the victim reached the field
of Chain Singh and mentioned the incident to him. Umrao Singh
E and Roop Singh took him to his home. They called the
watchman and mentioned him the incident. Due to heavy rain,
Jai Singh lodged the report to Police, Ahmadpur on 22.7.1988
at 6.40. On registering the offence, the victim was referred to
hospital. The M.L.C. Report was prepared. He was admitted
in the hospital and remained under treatment. On completion
F of the investigation, the accused persons were charge sheeted
under Sections 147, 148, 149 and 326 and 307 IPC.
The Trial court believed the evidence of the victim PW 5
and also the other evidences brought on record and recorded
G conviction and imposed sentences as aforestated. The
accused persons preferred an appeal before the High Court
where the basic stand was that offence under Section 307 IPC
is not made out. The High Court held that there was no material
on record to show that the injury was sufficient to cause death
H in the ordinary course of nature. It was observed that chopping
STATE OF M.P. v. KASHIRAM & ORS. 813
[DR. ARIJIT PASAYAT, J.]
of the leg from the body cannot be treated sufficient to cause A
death. As noted above with the aforesaid observation the
conviction and the sentence were altered.
4. In support of the appeal learned counsel for the
appellant-State submitted that the High Court has completely
B
overlooked the gruesome nature of the offence. It has also
overlooked the evidence of PW1, the Doctor that the injury could
---,.. . have caused death.
5. Learned counsel for the respondent on the other hand
.
supported the judgment of the High Court. c
6. With dismay we observe that the High Court has
completely overlooked the evidence on record and the
impugned judgment shows total non-application of mind. The
High Court observed that the doctor has not stated that the injury
was sufficient to cause death in the ordinary course of nature. D
~
PW 1 had noted that 1/3 of the leg was chopped off below the
knee. He had categorically stated that the injury could have
caused death. The Doctor (PW14) i.e. the Radiologist clearly
stated that the aforesaid chopping of the leg was grievous in
nature. With some strange logic the High Court observed that E
merely on the testimony of PW1 it cannot be assumed that the
injury was sufficient to cause death in ordinary course of nature.
7. The evidence of PW5 the victim clearly shows the
).- gruesome nature of the attack and the intention of the accused
persons. According to him, accused Ram Singh and Bapulal F
caught hold of him. He was laid down on the ground and the
accused Krishan Lal chopped out the left foot and Ram Singh
caught hold of his left leg and Bapulal caught hold of his right
leg, Arjun caught hold of his leg and Krishan Lal kept his legs
on his left hand and put clothes in his mouth and caught hold G
of his head. Leela Krishan said that his foot jaw has been
chopped off and the heels should also be chopped out.
Accused Su raj Singh kept his leg on a log of wood and Leela
Krishan chopped out his feet by axe from above the ankle. The
trial court noticed that the leg was chopped out between the H
814 SUPREME COURT REPORTS [2009] 1 S.C.R.
A knee and the ankle. Krishan Lal asked Ram Singh to keep the
chopped pieces of the leg in the bag and Ram Singh picked
up the pieces of legs and kept them in the bag. Though
accused Arjun Singh asked that both his eyes should be taken
out, accused Ganga Ram told him that chopping of his one leg
B was sufficient to cause his death.
8. Section 307 relates to attempt to murder. It reads as
follows:
"Whoever does any act with such intention or
knowledge, and under such circumstances that, if he by that
c 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
D to such punishment as is hereinbefore mentioned."
9. To justify a conviction under this Section, it is not
essential that bodily injury capable of causing death should have
been inflicted. Although the nature of injury actually caused may
E often give considerable assistance in coming to a finding as
to the intention of the accused, such intention may also be
deduced from other circumstances, and may even, in some
cases, be ascertained without any reference at all to actual
wounds. The Section makes a distinction between an act of the
accused and its result, if any. Such an act may not be attended
F by any result so far as the person assaulted is concerned, but
still there may be cases in which the culprit would be liable
under this Section. It is not necessary that the injury actually
caused to the victim of the assault should be sufficient under
ordinary circumstances to cause the death of the person
G assaulted. What the Court has to see is whether the act,
irrespective of its result, was done with the intention or
knowledge and under circumstances mentioned in the Section.
An attempt in order to be criminal need not be the penultimate
act. It is sufficient in law, if there is present an intent coupled
H with some overt act in execution thereof.
STATE OF M.P. v. KASHIRAM & ORS. 815
[DR. ARIJIT PASAYAT, J.]
--;- 10. It is sufficient to justify a conviction under Section 307 A
if there is present an intent coupled with some overt act in
execution thereof. It is not essential that bodily injury capable
of causing death should have been inflicted. The Section makes
a distinction between the act of the accused and its result, if
any. The Court has to see whether the act, irrespective of its B
result, was done with the intention or knowledge and under
circumstances mentioned in the Section. Therefore, an accused
··-y.
charged under Section 307 IPC cannot be acquitted merely
because the injuries inflicted on the victim were in the nature
• of a simple hurt. c
11. This position was highlighted in State of Maharashtra
v. Bairam Barna Patil and Ors. (1983 (2) SCC 28), Girija
Shanker v. State of Uttar Pradesh (2004 (3) SCC 793), R.
Parkash v. State of Karnataka (JT 2004 (2) SC 348) and State
Ir"
of Madhya Pradesh v. Saleem @ Chamaru & Anr. [2005 (5) D
sec 554].
12. Whether there was intention to kill or knowledge that
death will be caused is a question of fact and would depend
on the facts of a given case. The circumstances that the injury
inflicted by the accused was simple or minor will not by itself E
rule out application of Section 307 IPC. The determinative
question is intention or knowledge, as the case may be, and
not nature of the injury .
.....
13. Undue sympathy to impose inadequate sentence would F
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
G
or committed etc. This position was illuminatingly stated by this
Court in Sevaka Peruma/ etc. v. State of Tamil Naidu (AIR
1991 SC 1463).
14. After giving due consideration to the facts and
circumstances of each case, for.deciding just and appropriate H
816 SUPREME COURT REPORTS [2009] 1 S.C.R. -
A sentence to be awarded for an offence, the aggravating and
mitigating factors and circumstances in which a crime has been
committed are to be delicately balanced on the basis of really
relevant circumstances in a dispassionate manner by the Court.
Such act of balancing is indeed a difficult task. It has been very
B aptly indicated in Dennis Councle MCGDautha v. State of
Ca/lifomia: 402 US 183: 28 L.D. 2d .711 that no formula of a
foolproof nature is possible that would provide a reasonable
criterion in determining a just and appropriate punishment in
the infinite variety of circumstances that may affect the gravity
C of the crime. In the absence of any foolproof formula which may
provide any basis for reasonable criteria to correctly assess
various circumstances germane to the consideration of gravity
of crime, the discretionary judgment in the facts of each case,
is the only way in which such judgment may be equitably
distinguished.
0
15. The object should be to protect the society and to deter
the criminal in achieving the avowed object of law by imposing
appropriate sentence. It is expected that the Courts would
operate the sentencing system so as to impose such sentence
E which reflects the conscience of the society and the sentencing
process has to be stern where it should be.
16. Imposition of sentence without considering its effect on
the social order in many cases may be in reality a futile
exercise. The social impact of the crime, e.g. where it relates
F 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
G attitude by imposing meager sentences or taking too
sympathetic view merely on account of lapse of time in respect
of such offences will be result-wise counter productive in the
long run and against societal interest which needs to be cared
for and strengthened by string of deterrence inbuilt in the
H sentencing system.
STATE OF M.P. v. KASHIRAM & ORS. 817
[DR. ARIJIT PASAYAT, J.]
·~
17. The Court will be failing in its duty if appropriate A
punishment is not awarded for a crime which has been
committed not only against the individual victim but also against
the society to which the criminal and victim belong. The
punishment to be awarded for a crime must not be irrelevant
but it should conform to and be consistent with the atrocity and B
brutality with which the crime has been perpetrated, the
.. ~·
enormity of the crime warranting public abhorrence and it
should "respond to the society's cry for justice against the
criminal".
18. It also baffles us as to how the High Court uniformly c
directed reduction of sentence to the period already undergone.
The various periods of custody suffered by the respondents
during trial are as follows:
Kashi Ram 2 years 21 days
D
Lela Krishan 2 years 12 days
Kesh lal 17 days
Ram Singh 4 months and 20 days
Arjun Singh 4 months and 15 days
Suraj Singh 4 months and 20 days E
Bapu Lal 2 years and 12 days
19. Thereafter the High Court directed suspension of
• sentence. By then they had suffered custody for about 3 months
J.: 15 days more. There was no similarity in the period of sentence
already suffered by the accused persons when the High Court F
passed the impugned judgment.
20. Looked at from any angle the judgment of the High
Court is clearly unsustainable, deserves to be set aside which
we direct. The judgment of the trial court stands restored so far G
as conviction as well as the sentences are concerned.
-'
'
~
21. The appeal is allowed.
B.B.B. Appeal allowed.
H
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