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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    809         OF 2013 (Arising out of S.L.P. (Crl.) No. 7211 of 2012)

State of M.P.               .... Appellant(s)

Versus

Najab Khan & Ors.       ....  Respondent(s)

J U D G M E N T

P.Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the final judgment and  

order dated 13.12.2011 passed by the High Court of  Madhya  

Pradesh,  Bench  at  Gwalior  in  Criminal  Appeal  No.  150  of  

2006 whereby the High Court partly allowed the appeal filed  

by the respondents herein by maintaining the conviction and  

reducing their sentence to the period already undergone (i.e.  

14  days)  while  affirming  the  decision  dated  08.02.2006  

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passed  by  the  Additional  Sessions  Judge-I,  Guna  (MP)  in  

Sessions Trial No. 311 of 2001 with respect to the conviction  

of respondents herein under Section 326 read with Section  

34 of the Indian Penal Code, 1860 (in short “IPC”).  

3) Brief facts:

(a) On  11.08.2001, in the morning, when Mullo Bai, sister  

of  Fida Hussain-the complainant,  was passing through the  

field of Mohabbatdin - co-accused, at that time, Mohabbatdin  

abused her and told her not to pass through his field.   On  

this, Mullo Bai assured him that she will not pass through his  

field in future.  On the same day, in the evening, at about  

7.00 p.m.,  when Fida Hussain, along with Ahmed Hussain,  

Gulabuddin and Guddu, was going to the shop of one Nawab,  

on  their  way  near  the  hand  pump,  Najab  Khan  and  

Mohabbatdin  having  spade  in  their  hands  and  Gani  Khan  

holding a danda (stick) in his hand along with Munnawar Ali  

came at the spot and surrounded Fida Hussain.  Fida Hussain  

tried  to  escape  but  could  not  succeed  and  Mohabbatdin  

attacked  him  with  the  spade  due  to  which  he  sustained  

injury below his left shoulder and left arm.  In order to save  

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him,  the  other  persons,  viz.,  Guddu and Gulabuddin,  who  

were accompanying Fida Hussain, intervened.  After beating  

Fida Hussain, the accused persons fled away from the spot.  

Thereafter,  Fida  Hussain  went  to  the  Radhogarh  Police  

Station  and  an  FIR  was  lodged  which  was  registered  as  

Crime No. 248 of 2001.   

(b) During  the  course  of  investigation,  on  22.08.2011,  

Najab Khan was arrested and Gani Khan and Munnawar Ali  

were arrested on 10.09.2001. The police also got recovered  

the weapons (spades and stick) used in the commission of  

the aforesaid act.    

(c) After the investigation, a charge-sheet was filed against  

the respondents herein under Sections 307, 341, 326 read  

with 34 IPC and the case was committed to the Court of the  

First  Additional  Sessions  Judge-I,  Guna  (MP)  which  was  

numbered  as  Sessions  Trial  No.  311  of  2001.  Further,  

besides  the  accused  persons/respondents  herein,  

Mohabbatdin was also charged under Sections 341 and 307  

of IPC but vide order dated 11.10.2002, passed by the High  

Court in Revision No. 378 of 2002, it was directed to stay the  

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proceedings against  him and to  continue the trial  against  

rest of the persons i.e., the respondents herein.  

(d) During the trial, on a compromise between the accused  

persons  and  Fida  Hussain-the  complainant,  the  accused  

persons were acquitted under Section 341 of IPC.

(e) By  order  dated  08.02.2006,  the  Additional  Sessions  

Judge,  convicted  the  respondents  herein  for  the  offence  

punishable under Section 326 read with Section 34 of IPC  

and sentenced them to undergo rigorous imprisonment (RI)  

for three years along with a fine of Rs.500/- each, in default,  

to further undergo RI for 3 months.  

(f) Against  the  said  order,  the  respondents  moved  an  

appeal  being Criminal  Appeal  No.  150 of  2006 before the  

High Court.  The High Court, by impugned judgment dated  

13.12.2011,  partly  allowed  the  appeal  by  maintaining  the  

conviction  of  the  respondents  herein  and  reduced  their  

sentence to the period already undergone.

(g) Aggrieved by the said  order,  the State has filed this  

appeal by way of special leave.

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4) Heard Mr. C.D. Singh, learned counsel for the appellant-

State and Mr.  Lakhan Singh Chauhan,  learned counsel  for  

the respondent-accused.

5) The  only  point  for  consideration  in  this  appeal  is  

whether the High Court is justified in reducing the sentence  

to  the  period  already  undergone,  viz.,  14  days,  without  

providing any cogent reason for the conviction under Section  

326 read with Section 34 IPC.  

6) In view of the fact that the respondents herein-accused  

appellants  before  the  High  Court  did  not  challenge  the  

conviction  but  only  prayed  for  reduction  of  sentence  

awarded by the trial Court, there is no need to traverse the  

details regarding the conviction.  The fact remains that these  

persons were convicted by the trial Court under Section 326  

read with Section 34 IPC and sentenced to RI for three years  

along with a fine of Rs. 500/- each.   

7) It is stated before the High Court that during the trial  

they were in custody for a period of 14 days and the offence  

has already been compounded by the complainant and the  

appeal is pending since 2006.  The High Court, taking note of  

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the above said aspects, reduced their sentence to the period  

already undergone.

8) It is relevant to point out that after the registration of  

the  FIR,  the  complainant  was  sent  for  the  medical  

examination  which  was  conducted  by  Dr.  Anupam  Singh  

(PW-9) and after examination, the doctor found the following  

two injuries on the person of the complainant:

“a. An incised wound of 15 inches long extending from left  scapula to left shoulder joint bone deep bleeding present.

b. An  incised  would  of  1  inch  long  inter  scapula  bleeding was present.  The doctor also opined that injuries  has  been  caused  by  hard  and  sharp  object  and  was  of  grievous  nature.   The  doctor  also  opined  that  the  said  injuries  could  have supposed a  threat  to  the  life  of  the  complainant.”

It is further seen that on 13.08.2011, the x-ray of the chest  

and  shoulder  of  the  complainant  was  examined  by  Dr.  

Sitaram  Raghuvanshi  (PW-8)  who  found  fracture  of  left  

scapula  divided  into  two  pieces  extending  from  glenoid  

cavity  with  dislocation  of  left  shoulder  joint.   Considering  

such  injuries,  due  to  which  the  complainant  remained  in  

hospital for 29 days, we are of the view that the High Court  

is not justified in reducing the sentence to the period already  

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undergone  without  assigning  any  acceptable  and  special  

reason for the same.  The High Court also failed to take note  

of the opinion of the doctor that the injuries inflicted could  

have posed threat to the complainant’s life.

9) It is settled principle of law that the punishment should  

meet the gravity of the offence committed by the accused  

and  courts  should  not  show  undue  sympathy  with  the  

accused persons.   This  Court  has  repeatedly  stressed the  

central role of proportionality in sentencing of offenders in  

numerous cases.  In  Shailesh Jasvantbhai and Another  

vs.  State of Gujarat and others, (2006) 2 SCC 359, this  

Court held that the sentence imposed is not proportionate to  

the offence committed, hence not sustainable in the eyes of  

law. It was further observed as under:

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

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should  meet  the  challenges  confronting  the  society.  Friedman in his Law in Changing Society stated that: “State  of criminal law continues to be - as it should be -a decisive  reflection of social consciousness of society.” Therefore, in  operating  the  sentencing  system,  law  should  adopt  the  corrective machinery or deterrence based on factual matrix.  By deft  modulation,  sentencing process be stern where it  should be, and tempered with mercy where it warrants to  be.  The facts  and given circumstances  in  each case,  the  nature of the crime, the manner in which it was planned and  committed,  the  motive  for  commission  of  the  crime,  the  conduct of the accused, the nature of weapons used and all  other  attending  circumstances  are  relevant  facts  which  would enter into the area of consideration. 8.   Therefore,  undue  sympathy  to  impose  inadequate  sentence  would  do  more  harm  to  the  justice  system  to  undermine the public confidence in the efficacy of law and  society could not long endure under such serious threats. It  is,  therefore,  the  duty  of  every  court  to  award  proper  sentence having regard to the nature of the offence and the  manner in which it was executed or committed etc.”

10) This position was reiterated by a three-Judge Bench  

of this Court in Ahmed Hussein Vali Mohammed Saiyed  

and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein  

it was observed as follows:-

“99.….The object of awarding appropriate sentence should  be to protect the society and to deter the criminal  from  achieving  the  avowed  object  to  law  by  imposing  appropriate sentence. It is expected that the courts would  operate  the  sentencing  system  so  as  to  impose  such  sentence, which reflects the conscience of the society and  the sentencing process has to be stern where it should be.  Any  liberal  attitude  by  imposing  meager  sentences  or  taking too sympathetic view merely on account of lapse of  time in respect of such offences will be result-wise counter  productive  in  the  long  run  and  against  the  interest  of  society which needs to be cared for and strengthened by  string of deterrence inbuilt in the sentencing system.

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100.  Justice  demands  that  courts  should  impose  punishment befitting the crime so that the courts reflect  public  abhorrence of the crime. The court  must not only  keep in view the rights of the victim of the crime and the  society  at  large  while  considering  the  imposition  of  appropriate punishment. The court will be failing in its duty  if appropriate punishment is not awarded for a crime which  has been committed not only against the individual victim  but also against the society to which both the criminal and  the victim belong.”

In  this  case,  the  court  further  goes  to  state  that  meager  

sentence imposed solely on account of lapse of time without  

considering  the  degree  of  the  offence  will  be  counter  

productive in the long run and against the interest of society.  

11) In  Jameel  vs. State of Uttar Pradesh, (2010) 12  

SCC 532, this Court reiterated the principle by stating that  

the punishment must be appropriate and proportional to the  

gravity  of  the  offence  committed.  Speaking  about  the  

concept of sentencing, this Court observed thus: -

“15. In operating the sentencing system, law should adopt  the corrective machinery or deterrence based on factual  matrix.  By deft  modulation,  sentencing process  be stern  where  it  should  be,  and  tempered  with  mercy  where  it  warrants to be. The facts and given circumstances in each  case, the nature of the crime, the manner in which it was  planned and committed, the motive for commission of the  crime, the conduct of the accused, the nature of weapons  used and all  other  attending circumstances are relevant  facts which would enter into the area of consideration. 16. It is the duty of every court to award proper sentence  having regard to the nature of the offence and the manner  in  which  it  was  executed  or  committed.  The sentencing  

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courts  are  expected  to  consider  all  relevant  facts  and  circumstances  bearing  on  the  question  of  sentence  and  proceed  to  impose  a  sentence  commensurate  with  the  gravity of the offence.”

12) In  Guru Basavaraj @ Benne Settapa vs.  State of  

Karnataka, (2012) 8 SCC 734, while discussing the concept  

of appropriate sentence, this Court expressed that:

“It is the duty of the court to see that appropriate sentence  is  imposed  regard  being  had  to  the  commission  of  the  crime and its impact on the social order.  The cry of  the  collective for justice, which includes adequate punishment  cannot be lightly ignored.”

13) This Court, in Gopal Singh vs. State of Uttarakhand,  

JT 2013 (3) SC 444 held as under:-

“18. Just punishment is the collective cry of  the society.  While the collective cry has to be kept uppermost in the  mind,  simultaneously  the  principle  of  proportionality  between  the  crime  and  punishment  cannot  be  totally  brushed  aside.  The  principle  of  just  punishment  is  the  bedrock of sentencing in respect of a criminal offence…..”

14) Recently, the above proposition is reiterated in Hazara  

Singh vs. Raj Kumar & Ors., 2013 (6) Scale 142.  

15) In view of the above, we reiterate that in operating the  

sentencing  system,  law  should  adopt  the  corrective  

machinery or deterrence based on factual matrix.  The facts  

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and  given  circumstances  in  each  case,  the  nature  of  the  

crime, the manner in which it was planned and committed,  

the motive for commission of the crime, the conduct of the  

accused, the nature of weapons used and all other attending  

circumstances are relevant facts which would enter into the  

area  of  consideration.   We  also  reiterate  that  undue  

sympathy  to  impose  inadequate  sentence would  do  more  

harm  to  the  justice  system  to  undermine  the  public  

confidence in the efficacy of law.  It is the duty of every court  

to award proper sentence having regard to the nature of the  

offence  and  the  manner  in  which  it  was  executed  or  

committed.    The Courts  must  not  only  keep in  view the  

rights of the victim of the crime but also the society at large  

while considering the imposition of appropriate punishment.  

16) Though it is stated that both the parties have amicably  

settled, in view of the fact that the offence charged under  

Section 326 is  non compoundable and also in the light of  

serious  nature  of  the  injuries  and  no  challenge  as  to  

conviction,  we are of  the view that  the High Court  is  not  

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justified  in  reducing  the  sentence  to  the  period  already  

undergone.   

17) Accordingly, we set aside the order of the High Court  

and  restore  the  sentence  imposed  on  the  respondents  

herein.   Consequently,  the  appeal  filed  by  the  State  is  

allowed  and  the  respondents-accused  (A-1  to  A-3)  are  

directed  to  surrender  within  a  period  of  four  weeks  from  

today,  failing  which,  the  trial  Judge  is  directed  to  take  

appropriate steps for sending them to prison to undergo the  

remaining period of sentence.   

………….…………………………J.                   (P. SATHASIVAM)                                  

       ………….…………………………J.                  (M.Y. EQBAL)          

NEW DELHI; JULY 01, 2013.

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