GOPAL SINGH Vs STATE OF UTTARAKHAND
Bench: G.S. SINGHVI,DIPAK MISRA
Case number: Crl.A. No.-000291-000291 / 2013
Diary number: 28059 / 2012
Advocates: RANBIR SINGH YADAV Vs
ABHISHEK ATREY
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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