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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL  NO.  291     OF 2013 (Arising out of S.L.P. (Crl.) No. 9897 of 2012)

Gopal Singh ... Appellant

Versus

State of Uttarakhand                               ..Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. In  this  appeal  preferred  by  Special  Leave,  the  

appellant calls in question the legal substantiality of  

the  judgment  of  conviction  and  order  of  sentence  

dated  15.3.2012  passed  by  the  High  Court  of  

Uttarakhand at Nainital in Criminal Appeal No. 137 of  

2001 whereby the learned Single Judge has set aside  

the  conviction  under  Sections  307  and  380  of  the

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Indian Penal Code (for short “the IPC”) but maintained  

the conviction and sentence under Section 324 of the  

IPC passed by the learned Sessions Judge, Almora in  

Sessions Trial No. 24 of 1994.

3. The  facts  which  are  essential  to  be  stated  for  

adjudication of this appeal are that an FIR was lodged  

by Prem Singh, PW-2, alleging that about 9.00 p.m. on  

20.10.1992,  on  hearing  a  gunshot  sound  and  

simultaneously  the  cry  of  his  brother,  Gopal  Singh,  

PW-1, that he was being assaulted and his life was in  

danger,  he  rushed  to  the  shop  of  Gopal  Singh  and  

found that accused Gopal Singh and his brother Puran  

Singh were beating him with hands, fists and stones.  

He  saw  Har  Singh,  the  father  of  the  assailants,  

standing  outside  the  shop  along  with  two  unknown  

persons.  It was alleged that Narain Singh, PW-3, son  

of Prem Singh, had sustained a gunshot injury.  The  

informant and his nephew, Surendra Singh, took the  

injured  Gopal  Singh  and  Narain  Singh  to  Ranikhet  

Hospital.   It  was  further  alleged  that  the  accused  

persons had took away Rs.25,000/- from the shop of

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PW-1 and Rs.1200/- from his pocket.  Be it noted that  

after  taking  the  injured  persons  to  the  hospital  for  

treatment, an FIR was lodged with the Patwari, Bilekh.  

After  the  criminal  law  was  set  in  motion,  the  

Investigating Officer  recorded the statements  of  the  

witnesses under Section 161 of the Code of Criminal  

Procedure,  prepared the  site  plan,  Ext.-7,  recovered  

the  pellets,  seized  the  blood-stained  clothes  of  the  

injured persons and got them examined by the doctor,  

PW-4, and, eventually, on completion of investigation,  

placed the charge-sheet for  the offences punishable  

under Sections 147, 148, 452, 307 and 395 of the IPC  

before the learned Magistrate who, in turn, committed  

the matter to the Court of Session.  

4.  The accused persons abjured their guilt and pleaded  

false implication due to animosity which was founded on  

the harassment of Har Singh in the Gram Sabha election  

that was contested by Gopal Singh.  Be it stated, during the  

pendency  of  the  trial,  Puran  Singh  expired  as  a  

consequence  of  which  the  trial  proceeded  against  the  

accused persons, namely, Gopal Singh and Har Singh.

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5. The prosecution, in order to substantiate the charges  

framed  against  the  accused  persons,  examined  five  

witnesses,  namely,  Gopal  Singh,  PW1,  the injured,  Puran  

Singh, PW2, the brother of the injured, Narain Singh, PW3,  

who received the gunshot injury, Dr. N. K Pande, PW4, who  

examined the injured persons and Bachhi Singh Bora, PW5,  

the  investigating  officer,  and  got  number  of  documents  

exhibited.  The defence chose not to adduce any evidence  

in support of the plea taken.

6. The  learned  Sessions  Judge,  on  the  basis  of  the  

material brought on record, acquitted Har Singh of all the  

charges.   However,  he  convicted  accused  Gopal  Singh  

under  Sections  307,  324  and  380  of  the  IPC  giving  

credence to the testimony of PWs 1,3,4 and partly of PW 2  

and  sentenced  him  to  suffer  rigorous  imprisonment  for  

seven years,  one year and four years respectively under  

said scores with the stipulation that all the sentences shall  

be concurrent.

7. Aggrieved by the aforesaid conviction and sentence,  

the accused appellant preferred Criminal Appeal No. 137 of  

2001.    The learned Single Judge noted the fact that Gopal

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Singh  had  not  sustained  the  gunshot  injury  but  injuries  

were caused because of blows by fist, kicks and stones as a  

result of which there was fracture on the 10th rib of the said  

injured.  However, the High Court was of the opinion that  

Puran Singh might have applied the same means and same  

force and as he had died during the trial,  it was advisable  

to extend the benefit of doubt to the appellant.  Being of  

this view, it came to hold that the appellant is not guilty of  

the offence punishable under Section 307 of the IPC.  At  

this juncture, we may state that whether the analysis of the  

High Court on this score is correct or not, need not be gone  

into as the State has not assailed the impugned judgment.  

Therefore, we are compelled to leave it at that.   

8. As is perceivable, the High Court has found that the  

appellant  had  fired  a  gunshot  at  Narain.   For  the  

commission of the said crime, the learned trial Judge had  

convicted him under Section 324 of IPC and sentenced him  

to  undergo  rigorous  imprisonment  for  three  years.   The  

High  Court  did  not  find  any  flaw  in  the  analysis  of  the  

learned Sessions Judge on that count and gave its stamp of  

approval  to  the  same.   As  far  as  the  conviction  under

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Section  380  is  concerned,  the  High  Court  acquitted  the  

accused-appellant.  

9. Mr.  Sunil  Kumar  Bharti,  learned  counsel  for  the  

appellant,  contended  that  the  finding  that  the  appellant  

had  fired  a  gunshot  has  not  been  proven  beyond  

reasonable doubt inasmuch as the ‘Katta’  (country made  

pistol  that  was  fired)  has  not  been  seized.   In  the  

alternative, it is urged by him that regard being had to the  

nature of the injury, the age of the appellant at the time of  

the  incident,  the  evidence  on  record  that  there  was  no  

fracture and no injury barring a muscle injury, the rigorous  

imprisonment of three years is excessive and it deserves to  

be reduced.  

10. Dr.  Abhishek  Atrey,  learned  counsel  for  the  State  

supporting the judgment of conviction as well as the order  

of sentence, submitted that the learned Sessions Judge has  

correctly analysed the testimony of PWs who have deposed  

about the occurrence and further  taken note of  the fact  

that there has been recovery of pellet from the wall of the  

shop room of Gopal Singh and, accordingly has opined that

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the injury was caused on Narain Singh from  the gunshot  

fired from the ‘Katta’ (country made pistol) by the accused  

and,  therefore,  the  conclusion  arrived  at  on  that  base  

cannot  be  found  fault  with.   Meeting  the  alternative  

argument  which  pertains  to  the  imposition  of  excessive  

sentence, the learned counsel for the State would urge that  

in a case of the present nature, the rigorous imprisonment  

of three years cannot be regarded as disproportionate.  

11. At the very outset,  we may state with profit  that a  

counter case was filed by the accused persons but there  

was no allegation in the FIR that the gunshot was fired from  

the licensed gun of Prem Singh and, eventually, the said  

case has ended up in acquittal.  

12. Coming to the evidence on record, it is noticeable that  

PW-1 has clearly stated that accused Gopal Singh had fired  

from his  country  made pistol  which had hit  his  nephew,  

Narain  Singh.   In  the  cross-examination,  what  has  been  

elicited is that Prem Singh, father of Narain Singh, an ex-

serviceman,  is  a  holder  of  licensed  gun.   He  has  

categorically stated that the occurrence had taken place  

inside  his  shop  room.   There  has  been  no  cross-

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examination on these counts.  Similarly, Prem Singh, the  

father  of  injured  Narain  Singh,  has  vividly  narrated  the  

incident.    The  cross-examination  basically  relates  to  

enmity and theft  of  money.   PW 3 is  the injured Narain  

Singh.  It has come in his testimony that when his uncle,  

Gopal Singh, was preparing accounts in his shop,  he was  

suddenly hit by bullet fired by the accused, Gopal Singh.  It  

is interesting to note that what has been elicited from the  

testimony is that his father had a licensed gun.  From the  

medical evidence, it is limpid that the injury was caused by  

firearm.  PW5, the investigating officer, has deposed that  

he had recovered the pellets of ‘Katta’ from the wall of the  

shop  room,  the  place  of  the  incident.   Under  these  

circumstances,  we  are  disposed  to  think  that  solely  

because  the  ‘Katta’  has  not  been  recovered,  the  

prosecution  version  should  not  be  disbelieved.   In  this  

context,  we  may  refer  with  profit  to  the  decision  in  

Anwarul Haq v. State of U.P.1 wherein it was held that  

solely because the knife that was used in committing the  

offence had not  been recovered during the investigation  

could  not  be  a  factor  to  disregard  the  evidence  of  the  1 (2005) 10 SCC 581

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prosecution  witnesses  who  had  deposed  absolutely  

convincingly about the use of the weapon.  That apart, the  

Court  also  referred  to  the  evidence  of  the  doctor  which  

mentioned about the use of weapon   It is worth noting that  

this Court observed that though the doctor’s opinion about  

the weapon was theoretical, yet it cannot be totally wiped  

out.   Regard  being  had  to  the  aforesaid,  this  Court  

maintained  the  sentence  of  one  year  rigorous  

imprisonment under Section 324 of IPC as imposed  by the  

trial Court and concurred with by the High Court.

13. We may hasten to clarify that we are placing reliance  

on the aforesaid dictum as in the case at hand there is the  

doctor’s evidence that the injury has been caused by the  

gunshot  and  the  pellets  have  been  recovered  from  the  

walls  of the shop room of the accused appellant and no  

explanation for the same has been offered by the defence.  

What  has  been  elicited  in  the  cross-examination  is  that  

Prem Singh, the father of the injured, had a licensed gun.  

We  really  fail  to  fathom  how  the  said  elicitation  would  

render any assistance to the defence. The learned sessions  

Judge, taking into consideration the nature of the injury and

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the weapon used, has convicted the accused under Section  

324 of IPC which has been accepted by the High Court.  We  

perceive no fallacy either in the analysis or in the finding  

recorded on that score.   

14. The alternative submission of the learned counsel for  

the appellant is that when the learned Sessions Judge as  

well as the High Court has only found that the conviction  

under  Section  324  is  sustainable,  then  the  sentence  of  

rigorous imprisonment of three years should not have been  

awarded. In  this  regard,  it  is  fruitful  to  refer  to  the  

pronouncement in Santa Singh v. The State of Punjab2  

wherein Bhagwati, J. (as his Lordship then was), speaking  

for the Court, while interpreting the words used in Section  

235(2) of the Code of Criminal Procedure, adverted to the  

concept of proper sentence and opined thus: -

“......  a proper sentence is the amalgam  of many factors such as the nature of the  offence,  the  circumstances  —  extenuating  or  aggravating  —  of  the  offence, the prior criminal record, if any,  of the offender, the age of the offender,  the  record  of  the  offender  as  to  

2 (1976) 4 SCC 190

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employment,  the  background  of  the  offender  with  reference  to  education,  home life, sobriety and social adjustment,  the  emotional  and  mental  condition  of  the  offender,  the  prospects  for  the  rehabilitation  of  the  offender,  the  possibility of return of the offender to a  normal  life  in  the  community,  the  possibility of treatment or training of the  offender, the possibility that the sentence  may serve as a deterrent to crime by the  offender  or  by  others  and  the  current  community  need,  if  any,  for  such  a  deterrent in respect to the particular type  of offence. These are factors which have  to be taken into account by the court in  deciding upon the appropriate sentence,  and,  therefore,  the  legislature  felt  that,  for this purpose, a separate stage should  be  provided  after  conviction  when  the  court can hear the accused in regard to  these  factors  bearing  on  sentence  and  then  pass  proper  sentence  on  the  accused.”

The aforesaid principle has been followed in many a  

dictum of this Court.  

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15. In  Jameel  v.  State of  Uttar  Pradesh3, 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, the 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  courts  are  expected  to  consider  all  relevant  facts  and  

3 (2010) 12 SCC532

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circumstances bearing on the question of  sentence  and  proceed  to  impose  a  sentence commensurate with the gravity  of the offence.”

In the said case, there was a fracture of bone and the trial  

Court  had convicted  the appellant  therein  under  Section  

308  of  IPC  and  sentenced  him  to  undergo  rigorous  

imprisonment for two years.

16. In  Shailesh Jasvantbhai and another v. State of   

Gujarat and others4, the Court has observed thus:

“The law regulates social  interests,  arbitrates  conflicting  claims  and  demands.  Security  of  persons  and  property  of  the  people  is  an  essential  function of the State. It could be achieved  through  instrumentality  of  criminal  law.  Undoubtedly,  there  is  a  cross-cultural  conflict where living law must find answer  to the new challenges and the courts are  required to mould the sentencing system  to meet the challenges. The contagion of  lawlessness  would  undermine  social  order  and  lay  it  in  ruins.  Protection  of  society  and  stamping  out  criminal  proclivity must be the object of law which  must  be  achieved  by  imposing  appropriate sentence. Therefore, law as a  cornerstone  of  the  edifice  of  “order”  should  meet  the  challenges  confronting  the  society.  Friedman  in  his  Law  in  Changing  Society  stated  that:  “State  of  criminal law continues to be - as it should  

4 (2006) 2 SCC 359

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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”.

17. Recently, this Court in  Guru Basavaraj v. State of  

Karnataka5,  while  discussing the concept of  appropriate  

sentence has 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.”

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  

5 (2012) 8 SCC 734

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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.  A  

punishment  should  not  be  disproportionately  excessive.  

The  concept  of  proportionality  allows  a  significant  

discretion to the Judge but the same has to be guided by  

certain  principles.   In  certain  cases,  the  nature  of  

culpability, the antecedents of the accused, the factum of  

age, the potentiality of the convict to become a criminal in  

future,  capability  of  his  reformation  and  to  lead  an  

acceptable  life  in  the  prevalent  milieu,  the  effect  –  

propensity  to  become  a  social  threat  or  nuisance,  and  

sometimes lapse of time in the commission of the crime  

and his  conduct  in  the interregnum bearing in  mind the  

nature of the offence, the relationship between the parties  

and attractability of the doctrine of bringing the convict to  

the  value-based  social  mainstream  may  be  the  guiding  

factors.   Needless  to  emphasize,  these  are  certain  

illustrative aspects put forth in a condensed manner.  We  

may hasten to add that there can neither be a strait-jacket  

formula nor a solvable theory in mathematical exactitude.

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It  would  be  dependant  on  the  facts  of  the  case  and  

rationalized  judicial  discretion.   Neither  the  personal  

perception of a Judge nor self-adhered moralistic vision nor  

hypothetical apprehensions should be allowed to have any  

play.   For  every  offence,  a  drastic  measure  cannot  be  

thought of.  Similarly, an offender cannot be allowed to be  

treated  with  leniency  solely  on  the  ground  of  discretion  

vested  in  a  Court.   The  real  requisite  is  to  weigh  the  

circumstances in which the crime has been committed and  

other  concomitant  factors  which  we  have  indicated  

hereinbefore  and also  have been stated  in  a  number  of  

pronouncements  by  this  Court.  On  such  touchstone,  the  

sentences are to be imposed.  The discretion should not be  

in  the  realm  of  fancy.   It  should  be  embedded  in  the  

conceptual essence of just punishment.     

19. A Court, while imposing sentence, has to keep in view  

the  various  complex  matters  in  mind.  To  structure  a  

methodology relating to sentencing is difficult to conceive  

of.  The legislature in its wisdom has conferred discretion  

on the Judge who is guided by certain rational parameters,  

regard  been had  to  the  factual  scenario  of  the  case.  In

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certain  spheres  the  legislature  has  not  conferred  that  

discretion  and  in  such  circumstances,  the  discretion  is  

conditional. In respect of certain offences, sentence can be  

reduced by giving adequate special  reasons.  The special  

reasons have to rest on real special circumstances.  Hence,  

the duty of  Court  in such situations becomes a complex  

one. The same has to be performed with due reverence for  

Rule of La, the collective conscience on one hand and the  

doctrine  of  proportionality,  principle  of  reformation  and  

other concomitant factors on the other.    The task may be  

onerous but the same has to be done with total empirical  

rationality  sans  any  kind  of  personal  philosophy  or  

individual experience or any a-priori notion.  

20. Keeping in view the aforesaid analysis, we would refer  

to the view in respect of sentence this Court had imposed  

under Section 324 of IPC, regard being had to the concept  

of appropriate sentence. In  Dharma Pal and others v.  

State of Punjab6, while converting the conviction under  

Section 307 of  the IPC to Section 324 of  IPC,  this  Court  

thought it appropriate to sentence the convicts to one year  

6 AIR 1993 SC 2484

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rigorous imprisonment.   Be it  noted,  the Court  observed  

that though the injuries inflicted by the appellants therein  

were somewhat serious, yet the conviction under Section  

307 of the IPC was not made out.

21. In  Merambhai Punjabhai Khachar and others v.   

State of Gujarat7,  while this Court took note of the fact  

that  the  injury  was  caused  by  pellet,  the  ingredients  of  

Section 307 of IPC were not satisfied and, accordingly, the  

Court  converted  the  offence  under  Section  324  and  

sentenced the accused to undergo R.I.  for  one year  and  

pay a fine of Rs. 1000/-, in default, S.I. for one month.   

22. In Para Seenaiah and another v. State of Andhra  

Pradesh and another8, regard being had to the obtaining  

factual  matrix  therein,  the  sentence  of  rigorous  

imprisonment of one year under Section 324 of IPC with a  

fine of Rs.1,000/- and, in default,  imprisonment for three  

months was held to be justified.

23. At  this  juncture,  we  may  repeat  at  the  cost  of  

repetition  that  imposition  of  sentence,  apart  from  the  

7  AIR 1996 SC 3236  8 (2012) 6 SCC 800

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illustrations  which  have  been  stated  to  be  mitigating  

factors would depend upon many a other factors which will  

depend/vary from case to case.  The legislature in respect  

of an offence punishable under Section 124 of the IPC has  

provided punishment which may extend to three years or  

with  fine  or  with  both.   The  legislative  intent,  as  we  

perceive,  is  to  confer  discretion  on  the  judiciary  in  

imposition of sentence in respect of such offence where it  

has  not  provided  the  minimum  sentence  or  made  it  

conditional.   We  have  already  highlighted  that  the  

discretion vested cannot be allowed to roam in the realm of  

fancy but is required to be embedded in rational concepts  

based on sound facts.  

24.  In the case at hand, the doctor has not stated the  

injury to be grievous but on the contrary, he has mentioned  

that  there is  no fracture and only a muscle injury.   The  

weapon used fits in to the description as provided under  

Section 324 of IPC.  The occurrence has taken place almost  

20 years back.   The parties are neighbours and there is  

nothing  on  record  to  show  that  the  appellant  had  any  

criminal antecedents.  Regard being had to the totality of

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the facts and circumstances, we think it appropriate that in  

the  obtaining  factual  score,  the  sentence  of  rigorous  

imprisonment of one year under Section 324 of IPC would  

be adequate.  That apart, we are inclined to direct that the  

appellants  shall  pay  a  sum  of  Rs.  20,000/-  towards  

compensation as envisaged under Section 357 (3) of the  

Code to the victim.  The said amount shall  be deposited  

before the learned trial Judge who shall disburse the same  

in favour of the victim on proper identification.

25. With the aforesaid modification in the sentence, the  

appeal stands disposed of.    

……………………………….J.     [G. S. Singhvi]

……………………………….J.                                            [Dipak Misra]

New Delhi; February  08, 2013