REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1161   2019 (Arising out of SLP(Crl.) No.8894 of 2018)

SURYAKANT BABURAO  @ RAMRAO PHAD                   ...Appellant

VERSUS

STATE OF MAHARASHTRA AND OTHERS             …Respondents

                J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the judgment dated 12.07.2018

passed  by  the  High  Court  of  Judicature  of  Bombay  at

Aurangabad in Criminal Appeal No.11 of 2016 in and by which

the  High  Court  affirmed  the  conviction  of  respondent  No.2-

accused No.1 under Section 307 IPC read with Section 34 IPC

and reduced the sentence of imprisonment imposed upon him

from seven years  to  five years  and imposed fine amount  of

Rs.25,000/-.  Insofar respondent Nos.3 and 4-accused Nos.2

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and 3, the High Court acquitted them from the charges under

Section 307 read with Section 34 IPC and instead convicted

them under Section 326 read with Section 34 IPC and reduced

the sentence of imprisonment imposed upon them to the period

already  undergone and  imposed fine  amount  of  Rs.25,000/-

upon each of them.  The High Court maintained the conviction

of accused Nos.1 to 3 under Section 323 read with Section 34

IPC also the sentence of imprisonment imposed upon each of

them.  

3. The  appellant-Complainant  has  filed  this  appeal

challenging  the  reduction  of  sentence  of  imprisonment  of

respondent  Nos.2  to  4.   Case  of  prosecution  is  that  on

24.01.2012 at about 05.30 PM, when Chandrakant (PW-6) was

proceeding towards his land via Pangaon ‘T’ point, respondent

No.2-Devraj (A1) who along with respondent No.3-Ashish (A2)

and respondent No.4-Balaji (A3) was standing near the mobile

shop of one Prahlad Joshi, asked PW-6-Chandrakant why he

obstructed  respondent  No.4-Balaji  (A3)  from  spreading  the

rubble  in  his  field  and  there  was  some  exchange  of  words

between them.  In this quarrel, Devraj (A1) took out pistol from

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his waist and fired one shot at PW-6-Chandrakant on his chest.

Hearing  the  sound,  Suryakant  (PW-7),  Shivaji  (PW-5)  and

others rushed to the spot.  Accused Nos.2 and 3 were alleged

to be holding stick and stone respectively in their hands.  When

Suryakant (PW-7) tried to intervene, accused No.1 fired a bullet

from his pistol which hit on the left knee of PW-7.  When Shivaji

Phad (PW-5) tried to intervene, accused persons beat him with

fists and kicked and also inflicted a knife blow on him causing

him grievous hurt and then accused fled away.  Injured PW-6

and PW-7 were taken to hospital  and were given treatment.

Suryakant  (PW-7) lodged the complaint  based on which FIR

was registered under Section 307 read with Section 34 IPC,

Sections  323 and 506 IPC.   On completion of  investigation,

charge  sheet  was  filed  against  the  accused  under  Sections

307, 323 and 506 read with Section 34 IPC and under Section

4 read with Section 25 of the Arms Act.  Later, charge under

Section 4 read with Section 25 of the Arms Act was altered to

Section 3 read with Section 25 of the Arms Act.

4. To prove the guilt  of  the accused,  in the trial  court  the

prosecution examined thirteen witnesses and produced number

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of  documents.  Relying  upon  the  evidence  of  injured

eye-witnesses  Chandrakant  (PW-6),  Suryakant  (PW-7)  and

eye-witness  Ram  Phad  (PW-4)  and  also  upon  the  medical

evidence,  the  trial  court  vide  judgment  dated  23.12.2015

convicted accused Nos.1 to 3 under Section 307 IPC read with

Section  34  IPC  and  sentenced  each  of  them  to  undergo

rigorous imprisonment for seven years and also to pay a fine of

Rs.15,000/-  each  with  default  clause.  The  trial  court  also

convicted them under Section 323 read with Section 34 IPC

and sentenced each of them to undergo rigorous imprisonment

for six months and to pay a fine of Rs.500/- each with default

clause.  The trial court directed that out of the fine amount paid

by the accused, Rs.20,000/- be given to injured Chandrakant

(PW-6) and Suryakant (PW-7) each as compensation as per

the provision of Section 357 Cr.P.C.

5. In the appeal filed before the High Court, the High Court

affirmed  the  conviction  of  accused  No.1-Devraj  under

Section 307 read with Section 34 IPC but reduced the sentence

of imprisonment imposed upon him to five years.  Additionally,

the High Court directed accused No.1-Devraj to pay a fine of

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Rs.25,000/- with default clause.  The High Court also convicted

accused No.1-Devraj under Section 326 read with Section 34

IPC and reduced the sentence of imprisonment imposed upon

him to the period already undergone by him and also directed

to  pay  a  fine  of  Rs.15,000/-  with  default  clause.  Insofar  as

conviction  and sentence of  imprisonment  under  Section  323

read with Section 34 IPC, the High Court maintained the same.

The High Court  acquitted accused No.2-Ashish and accused

No.3-Balaji  from  the  charge  under  Section  307  read  with

Section 34 IPC and instead convicted them under Section 326

read  with  Section  34  IPC  and  imposed  the  sentence  of

imprisonment  to  the  period  already  undergone by  them and

accused Nos.2 and 3 were directed to pay a fine of Rs.25,000/-

each  with  default  clause.  The  High  Court  maintained  the

conviction  and sentence of  imprisonment  under  Section  323

IPC read with  Section 34 IPC imposed upon accused No.2-

Ashish  and  accused  No.3-Balaji.   Out  of  the  fine  amount

deposited by the accused, a sum of Rs.60,000/- was directed

to be paid to PW-6-Chandrakant and a sum of Rs.30,000/- was

ordered to be paid to PW-7-Suryakant as compensation under

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Section  357  Cr.P.C.  Being  aggrieved,  injured  complainant-

Suryakant (PW-7) has preferred this appeal.

6. We  have  heard  Mr.  Uday  B.  Dube,  learned  counsel

appearing for the appellant and Mr. Sudhanshu S. Choudhari,

learned  counsel  appearing  for  respondent  Nos.2  and  3-

accused Nos.1 and 2 and Mr. Sandeep Sudhakar Deshmukh,

learned counsel appearing for respondent No.4-accused No.3

and  also  Mr.  Nishant  R.  Katneshwarkar,  learned  counsel

appearing for the State and perused the impugned judgment

and materials on record.

7. The learned counsel appearing for the appellant inter alia

submitted that accused No.1-Devraj shot a bullet in the chest of

PW-6-Chandrakant which pierced through his chest and came

out from  the back side and PW-11-Dr. Manoj Landge opined

that the injury sustained by PW-6-Chandrakant was grievous in

nature which was capable of causing death and while so, the

High Court  was not  right  in showing undue sympathy to the

respondents-accused  and  reducing  the  sentence  of

imprisonment imposed upon them.

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8. The learned counsel appearing for respondent Nos.2 to 4-

accused Nos.1 to 3 have submitted that considering the facts

and  circumstances  of  the  case  and  the  age  of  respondent

Nos.3 and 4 and other circumstances, the High Court exercised

its discretion in reducing the sentence of imprisonment and at

the  same  time  increased  the  fine  amount  to  be  paid  as

compensation as per the provision under Section 357 Cr.P.C.

and  the  impugned  judgment  reducing  the  sentence  of

imprisonment warrants no interference.   

9. A person committing an offence under Section 307 IPC

can be  ordered to  undergo imprisonment  for  life.   To  justify

conviction under Section 307 IPC, intention of causing death or

that it was done with the intention of causing such injury which

is likely to cause death is necessary to constitute the offence.

Although  the  nature  of  injury  actually  caused  would  be  of

considerable  assistance  in  coming  to  a  finding  as  to  the

intention of the accused.  Such intention may also be deduced

from other circumstances.   

10. Accused No.1-Devraj was serving in the Army and was

possessing a licence for carrying the pistol.  If the evidence of

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injured witnesses PW-6-Chandrakant and PW-7-Suryakant and

eye-witness  PW-4-Ram Phad  is  considered  in  its  entirety,  it

becomes clear that the attempt by accused No.1-Devraj was

with intention to teach a lesson to PW-6-Chandrakant as to why

he opposed accused No.3-Balaji from spreading the rubble in

his field and there was some hot exchange of words between

them.  Accused No.1-Devraj carrying the pistol shot at PW-6-

Chandrakant  at  his  chest  which  pierced  through  his  chest.

When PW-7-Suryakant tried to interfere, accused No.1-Devraj

shot at PW-7-Suryakant also.   

11. In the occurrence, PWs 6 and 7 sustained the following

injuries:-

“Injuries noticed on person of PW-6-Chandrakant

1) Punctured wound over lower 1/3rd of Pre-sternal area 2 × 2

cm oval, age less than six hours.

2) Punctured wound over  right  side of  chest  post-axillary  line

about in 7 inter costal space 2 × 2 cm oval, age less than six

hours.

3) Contused  lacerated  wound  over  scalp  left  parieto  occipital

region, 2 × 1 × 0.5 cm, age less than six hours, simple in

nature.

Injuries noticed on person of PW-7-Suryakant

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1) Punctured wound on lateral aspect of upper part of left knee 2

× 2 cm oval, age less than six hours, simple in nature.

2) Punctured wound over medical aspect of popliteal region 2 ×

2 cm oval, age less than six hours.  Grievous in nature.  X-ray

shows displaced fracture of supracondylor.  

The  bullet  injury  pierced  through  the  chest  of  PW-6-

Chandrakant  and  came  out  from  the  back  side.   In  his

evidence,  PW-11-Dr.  Manoj  Landge  specifically  stated  that

injuries No.1 and 2 caused to PW-6-Chandrakant were capable

of  causing  death.   So  far  as  the  injuries  caused  to  PW-7-

Suryakant  are  concerned,  PW-11-Dr.  Manoj  Landge  opined

that they were not fatal to life.

12. While  considering the quantum of  sentence,  the  courts

are expected to consider all relevant facts and circumstances

of  the  case,  in  particular,  nature  of  injuries  caused  in  the

occurrence and the weapon used which will have bearing on

the question of sentence and the Courts are bound to impose

sentence  commensurate  with  the  gravity  of  the  offence.

Considering the nature of injuries caused to PW-6-Chandrakant

i.e. gun shot wounds in the chest and the opinion of Doctor that

the injuries caused to PW-6 are capable of causing death, in

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our view, the High Court was not right in reducing the sentence

of first accused-Devraj.  

13. The  question  of  awarding  sentence  is  a  matter  of

discretion  for  the  courts  and  has  to  be  exercised  on

consideration of facts and circumstances of the case. Though

the court has discretion in awarding the sentence, it should be

commensurate with the gravity of the offence. The court has to

record brief reasons to explain the choice of sentence.  In State

of  Punjab  v.  Bawa  Singh  (2015)  3  SCC 441, the  Supreme

Court in para (16) held as under:-

“16. …….  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 sentencing 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. The court 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.

Meagre sentence imposed solely  on account  of  lapse of  time

without  considering  the  degree  of  the  offence  will  be

counterproductive in the long run and against the interest of the

society.”

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14. In  Ravinder  Singh v.  State  of  Haryana  (2015)  11 SCC

588, it was held as under:-

“11. The question of sentence is always a difficult task requiring

balancing of  various considerations.  The question of  awarding

sentence  is  a  matter  of  discretion  to  be  exercised  on

consideration of circumstances aggravating and mitigating in the

individual  cases.  The  law courts  have  been consistent  in  the

approach  that  a  reasonable  proportion  has  to  be  maintained

between the seriousness of the crime and the punishment. While

it is true that a sentence disproportionately severe should not be

passed that does not clothe the court with an option to award the

sentence  manifestly  inadequate.  Justice  demands  that  courts

should impose punishment befitting the crime so that the courts

reflect public abhorrence of the crime.”

15. In  Sevaka Perumal and another v.  State of Tamil Nadu

(1991) 3 SCC 471, it was held as under:-  

“10. ……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 serious threats.  If  the courts did not protect the

injured, the injured would then resort to private vengeance. 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.”

16. Considering the nature of  the injuries  caused to PW-6-

Chandrakant  and  PW-7-Suryakant  and  the  facts  and

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circumstances of  the case,  the trial  court  convicted accused

No.1-Devraj under Section 307 read with Section 34 IPC and

sentenced him seven years rigorous imprisonment with a fine

of Rs.15,000/-.  When the trial court has exercised its discretion

in imposing seven years of sentence of imprisonment, the High

Court ought to have kept in view the weapon used by accused

No.1 and the nature of injuries caused to PW-6-Chandrakant

and the opinion of the Doctor. The courts must not only keep in

view the right of the accused, but must also keep in view the

interest of the victim and society at large. The courts have been

consistent in approach that a reasonable proportion has to be

maintained  between  the  gravity  of  the  offence  and  the

punishment.  While it is true that the sentence imposed upon

the accused should not be harsh, inadequacy of sentence may

lead to sufferance of the victim and the community at large. So

far  as the first  accused-Devraj  is  concerned,  the High Court

was  not  right  in  reducing  the  sentence  of  imprisonment

imposed upon first accused.  As pointed out earlier, the High

Court reduced the sentence of imprisonment from seven years

to five years and increased the fine amount to Rs.25,000/- and

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part  of  the  said  fine  amount  was  ordered  to  be  paid  as

compensation  to  the  injured  PW-6-Chandrakant  and  PW-7-

Suryakant.   Since  the enhanced compensation  was  paid  by

accused No.1 which is said to have been withdrawn by injured-

victims, for conviction under     Section 307 read with Section

34  IPC,  the  first  accused-Devraj  shall  undergo  rigorous

imprisonment for six years and six months.

17. So far as respondent Nos.3 and 4-accused Nos.2 and 3

are concerned, at the time of occurrence, they were not armed.

Accused Nos.2 and 3 are alleged to have attacked the injured

with fist and kicked and with sticks.  Considering the facts and

circumstances of the case and the evidence on record, we are

not  inclined  to  interfere  with  the  acquittal  of  accused  Nos.2

and 3 under Section 307 read with Section 34 IPC.  So far as

conviction  under  Section  323 read with  Section  34 IPC,  the

High Court  took into consideration that  accused No.2-Ashish

was nineteen years old at the time of occurrence and accused

No.3-Balaji was thirty-eight years old and keeping in view their

age and family circumstances and that they were not having

criminal antecedents, the High Court thought fit to reduce the

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sentence  of  imprisonment  from  six  months  to  the  period

already undergone by them. Since accused Nos.2 and 3 were

not  armed with  the  deadly  weapons,  we are  not  inclined to

interfere  with  their  acquittal  under  Section  307  read  with

Section 34 IPC and the reduction of sentence of imprisonment

under Section 326 read with Section 34 IPC.

18. In the result,  the impugned judgment of the High Court

dated  12.07.2018  in  Criminal  Appeal  No.11  of  2016  is  set

aside.  For conviction under Section 307 read with Section 34

IPC, the second respondent-accused No.1-Devraj is sentenced

to undergo rigorous imprisonment for six years and six months

and the appeal is partly allowed.  The acquittal of respondent

Nos.3 and 4-accused Nos.2 and 3 under Section 307 read with

Section 34 IPC is affirmed and the judgment of the High Court

convicting them under Section 326 IPC read with Section 34

IPC and reducing the sentence of imprisonment imposed upon

accused No.2 and 3 to the period already undergone is also

affirmed and the appeal qua respondent Nos.3 and 4-accused

Nos.2 and 3 is dismissed.  So far as the fine amount imposed

upon the accused and the direction of the High Court to pay the

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compensation  to  the  injured  under  Section  357  Cr.P.C.  is

maintained.

19. The accused No.1-Devraj is directed to surrender within

four weeks from today to serve the remaining sentence failing

which, he shall be taken into custody.

…………………………..J.                                                                   [R. BANUMATHI]

…………………………..J.                                                              [A.S. BOPANNA]

New Delhi; July 30, 2019

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