Holding

The conviction under Section 308 IPC and the two‑year rigorous imprisonment sentence are upheld as proper and proportionate.

Summary

Jameel and Dastgir assaulted Hasib with a lathi, fracturing his left parietal bone. Both were convicted under Section 308 IPC for attempt to commit culpable homicide and sentenced to two years' rigorous imprisonment; the High Court later acquitted Dastgir but upheld Jameel's conviction. Jameel appealed, contending that the injury amounted only to hurt under Section 323 IPC and that the sentence was excessive given time already served. The State argued that the injury constituted grievous hurt under the seventh clause of Section 320 IPC, justifying conviction under Section 308 and the imposed sentence. The Supreme Court examined the medical evidence, the nature of the weapon, the enmity between parties, and established sentencing principles, concluding that the conviction and two‑year sentence were proper and proportionate. Consequently, the appeal was dismissed.

Issues considered

Whether the facts constitute an offence under Section 308 IPC (attempt to commit culpable homicide) or only under Section 323 IPC (hurt).
Whether the two‑year rigorous imprisonment awarded is a reasonable and proportionate sentence for the offence.

Legislation cited

Indian Penal Code, 1860s. 308, s. 320(7), s. 323, s. 324, s. 325

Subjects

attempt to commit culpable homicidegrievous hurtsentencing principlesproportionalityIPC Section 308lathi assaultenmity

Judgment

[2009] 15 (ADDL.) S.C.R. 712

A JAMEEL
v.
STATE OF U.P.
(Criminal Appeal No. 2040 of 2009)
NOVEMBER 06, 2009
B
[P. SATHASIVAM AND J.M. PANCHAL, JJ.]
Penal Code, 1860 - s.308 and s.320, seventh clause -
Attempt to commit culpable homicide - Pissault with 'lathi' in
view of past enmity- Victim hit on the head - Bone of his head
c fractured - Accused-appellant convicted u/s.308 and
sentenced to two years' r:igorous imprisonment - Quantum of
sentence - Challenged by appellant - Held: Injury sustained
by victim was in the nature of grievous ,hurt (in terms of s.320, ·
seventh clause) - Punishment for voluntarily causing grievous
hurt can extend upto imprisonment for seven years - No valid
0 ground for reduction of sentence in facts and circumstances
of the case - Sentence/Sentencing - Proper and appropriate
sentence- Considerations for determining sentence -
Discussed.
According to the prosecution, in view of past enmity,
E appellant alongwith another accused inflicted injury on
the head of PW3 by assaulting him with 'lathi'. The trial court
convicted both the accused under Section 308 IPC with
two years rigorous imprisonment. On appeal, the t:tigh
Court confirmed the conviction and sentence in respect
F of the appellant but acquitted the other accused.
Before this Court, the appellant contended that in the
facts and circumstances of the case, the only offence made
out was under Section 323 IPC arid since the appellant had
already undergone nearly eight months in custo~)', the
G conviction and sentence awarded by trial Court and
confirmed by the High Court ought to be modified
accordingly, and he ought to be acquitted.
On the other hand, the State by pointing out the injury,
medical report and ingredients of Sections 320, 324 and
H 712
JAMEEL v. STATE OF U.P. 713

325 IPC submitted that since head injury by use of '/athi' is A
a grievous injury in terms of clause 7 of Section 320 IPC,
'
( -~
there was no ground for interference and reduction of
sentence was not warranted.
-In appeal to this Court, the question that arose for
consideration was whether the prosecution had B
established its case and the quantum of sentence, namely,
two years' rigorous imprisonment, as awarded by the
Courts below was reasonable and acceptable.
Dismissing the appeal, the Court
HELD: 1.1. The general policy which the courts have c
followed with regard to sentencing is that the punishment
must be appropri.ate and proportional to the gravity of the
offence committed. Imposition of appropriate punishment
is the manner in which the Courts respond to the society's
cry for justice against the criminals. Justice demands that
Courts should impose punishment befitting the crime so D
that the Courts reflect public abhorrence of the crime. [Para
_. 1O] [719-0-E]
1.2. In operating the sentencing system, law should
adopt the corrective machinery or deterrence based on
factual matrix. By deft modulation, sentencing process be E
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
F
weapons used and all other attending circumstances are
relevant facts which would enter into the area of
consideration. [Para 11] ,[719-F-G]
1.3. 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 is executed or committed. G
The sentencing Courts are expected to consider all
relevant tacts and circumstances having bearing on
the question of sentence and proceed to impose a
sentence commensurate with the gravity of the offence.
[Para 12] [719-G-H; 720-A] H
714 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A Gurmukh Singh vs. State of Haryana JT 2009 (11) SC
_._ .;.
122, relied on.
2.1. In the present case, as far as complicity of the
appellant is concerned, the prosecution has established
its case beyond doubt that he hit on the head of PW3 with
B a lathi and injured him. It has been established and proved
from the statement of the injured PW-3 and his wife PW-2.
It is also clear from the evidence of PW-2 that she had
accompanied her husband-PW-3 and father-in-law (PW1)
to the Police Station. [Para 13] [720-A-B]
c 2.2. From the medical report and the supplementary
medical report, it is clear that injury was inflicted on the left
side head i.e. 7 cm above left eye-brow. There was a
fracture of left parietal bone and according to PW-5 (the
doctor) the bone of PW3'$ head was fractured. As per
Section 323 IPC, whoever, except in the case provided for
D by Section 334, voluntarily causes hurt, shall be punished
with the imprisonment of either description for a term ;..
which may extend to one year, or with fine which may
extend to one thousand rupees, or with both. In the light
of the evidence of the doctors' medical report, Section 323
E is not at all applicable. [Para 14] [720-8-0]
2.3. dn the other hand, grievous hurt has been
defined in Section 320 IPC. In view of strong medical
evidence, oral and documentary, the injuries sustained by
the PW-3 comes under 'Seventhly' of Section 320 i.e.
F fracture or dislocation of a bone. Voluntarily causing hurt
by dangerous weapons or means has been explained in
Section 324 and punishment for voluntarily causing
grievous hurt is with imprisonment which may extend to
seven years and is also be liable to be fined. The trial Court .
>
as well as the High Court, taking note of the enmity and
G intention of the accused and nature of injuries, evidence-
both oral and documentary and medical evidence,
concluded and awarded punishment under Section 308
IPC. In the circumstances of the case and in view of the
materials placed, there is no valid ground for reduction of
H sentence. [Paras 14 and 15] [720-E; 721-A-C-F]
JAMEEL v. STATE OF U.P. 715

Case Law Reference : A
JT 2009 (11) SC 122 relied on Para 9
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 2040 of 2009.
From the Judgment & Order dated 04.07.2007 of the High
Court of Judicature at Allahabad, Lucknow Bench, Lucknow in B
Criminal appeal No. 8 of 1996.
R.K. Singh, Sanjeev Malhotra, for the Appellant.
Ratnakar Das, Vandana Mishsra, Gunnam Venkateswara
Rao for the Respondent. c
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. Leave granted.
2. This appeal is directed against the judgment and order
of the High Court of Judicature at Allahabad, Lucknow Bench
passed in Criminal Appeal No. 8 of 1996 dated 04.07.2007 in D
and by which, it dismissed the appeal insofar as the appellant
herein is concerned and confirmed the conviction and sentence
imposed on him by the Addi. District and Sessions Judge,
Lucknow in Sessions Trial .No. 323 of 1994 under Section 308
IPC for a period of two years. E
3. Brief facts:
(a) According to the prosecution, on 21.04.1989, at
about 4.00 p.m. in the evening the accused persons
Dastgir and Jameel injured Hasib Mohammad, son
of lkram Ali-the Complainant assaulting with lathis on F
the way near granary while carrying seeds to the
fields in village Khwaja Ka Purwa, hamlet of Rojoli
under Police Station Chinhat, District Lucknow. The
said incident was witnessed by Rashid and
Siddique. The cause of the incident as stated was G
that one day before the incident, the accused
persons Jameel and Dastagir reaped two bundles
of hay more from theiields of informant lkram Ali. It
was he, who. made a complaint to the police which
was registered at 7.30 p.m. on 21.04.1989. Injured
H
716 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A Md. Hasib was sent to Balrampur hospital for \_

medical examination where Dr. T.N. Singh, the
~
emergency merlical officer Balrampur, Lucknow
examined him at 8.45 p.m. on 21.04.1989 and found
the following injuries:-
·s '(i) One ruptured wound 4 X 1.5 cm deep under
observation on the left side of the head, 7 cm above "
the eye-brow.
(ii) It was bleeding ar:id swelling around the injury.
(b) The X-ray of injury on the head of Hasib was
c conducted on 22.04. 1989 by Dr. Amit Kumar -
Radiologist Balrampur. After completion of the
investigation, charge-sheets being exhibits K-5 and
K-6 were filed against Jameel and Dastgir on
31.05.1989 and 09.06.1989 respectively under
D Section 308 IPC.
(c) The prosecution examined the informant lkram Ali as
PW-1, Smt. Mehrunisa wife of injured Hasib as PW-
2, injured Hasib as PW-3, Dr. T.N. Singh as PW-4,
Dr. Amit Kumar as PW-5 and Police Inspector/
E Investigating Officer Shri Mahraj Singh as PW-6.
(d) The accused denied the charges leveled against
them in the statement under Section 313 CrPC and
stated that the case was instituted due to enmity. In
defence, no evidence was produced on behalf of the
F accused persons. However, they filed an application
stating that the prosecution ·case does not fall under
Section 308 and it falls under Section 324 IPC.
(e) The trial Court found that in the incident both the
accused persons participated in inflicting injury to
G Hasib with the common intention and were liable
equally in inflicting one injury on Head, therefore, the
offence under Section 308 is proved against the
accused persons. In view of the said conclusion, the
trial Court convicted the accused persons i.e. Dastgir
and Jameel under Section 308 IPC on 22.12.1995
H and punished with two years rigorous imprisonment.
JAMEEL v. STATE OF U.P. [P. SATHASIVAM, J.] 717

(f) Aggrieved by the aforesaid conviction and A
sentence, both the accused persons preferred
, A Criminal Appeal No.8 of 1996 before the High Court
of Judicature at Allahabad, Lucknow Bench. The
High Court by the impugned order and taking note
of the statement of the injured found Dastgir not guilty B
and acquitted him, however, confirmed the
conviction and sentence insofar as Jameel and
dismissed his appeal on 04.07.2007. Questioning
the same,·the present appellant-Jameel has filed the
above appeal by way of special leave.
4. We heard Mr. R.K. Singh, learned counsel for the
c
appellant and Mr. Ratnakar Das, learned senior counsel for the
State of U.P.
5. On 17.07.2009, this Court issued notice only on the
question of sentence; hence, there is no need to traverse all the
factual details as stated in the trial Court and the High Court. The D
only question that arises for consideration in this appeal is
_., whether the quantum of sentence, namely, two years' rigorous
- imprisonment awarded for an offence under Section 308 IPC is
reasonable and acceptable.
6. Learned counsel appearing for the appellant, after taking E
us through all the relevant materials, contended that in the facts
and circumstances led in by prosecution the only offence made
out is Section 323 and in view of the fact that the appellant had
undergone nearly eight months in custody, the conviction and
sentence awarded by the trial Court and confirmed by the High
Court are to be modified accordingly, and he may be set at liberty
F
forthwith. On the other hand, learned senior counsel appearing
for the State of U.P. by pointing out the injury, medical report and
ingredients of Sections 320, 324 and 325 IPC submitted that
taking note of the head injury by use of lathi which is a grievous
injury in terms of clause 7 of Section 320 IPC as certified by G
doctor, there is no ground for interference and reduction of
sentence is not warranted.
7. We have carefully perused all cne oral and documentary
evidence as well as considered the rival contentions of both the
parties. In view of the limited notice only as regards to question H

...
718 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.

A of sentence, let us find out whether the prosecution has
....
established its case and award of two years' rigorous .I
imprisonment is quite reasonable and acceptable.
8. Before going into the acceptability or reasonableness
about the sentence awarded to the appellant-accused,_ let us
B consider the well-established principles in awarding proper and
appropriate sentence.
9. Recently, this Court, in Gurmukh Singh vs. State of
Haryana, JT 2009 (11) SC 122 = 2009 (11) SCALE 688,
enumerated the various considerations which will be taken into
c account while determining the sentence which read as under:
"24. These are some factors which are required to be taken
into con.sideration before awarding appropriate sentence
to the accused. These factors are only illustrative in
character and not exhaustive. Each case has to be seen
from its special pe(spective. The relevant factors are as
D under:
(a) Motive or previous enmity_;
(b) Whether the incident had taken place on the spur of the
-/-·
..
moment;
(c) The intention/knowledge of the accused while inflicting
E the blow or injury; l
(d) Whether the death ensued instantaneously or the victim
died after several days;
(e) The gravity, dimension and nature of injury; ~·

(f) The age and general health condition of the accused;
F (g) Whether the injury was caused without pre- meditation
in a sudden fight;
(h) The nature and size of weapon used for inflicting the injury
and the force with which the blow was inflicted; •
(i) The criminal background and adver~e history of the
G accused;
U) Whether the injury inflicted was not sufficient in the
ordinary course of nature to cause death but the death was
because of shock;
.
(k) Number of other criminal cases pending against the
H accused;
...
JAMEEL v. STATE OF U.P. [P. SATHASIVAM, J.) 719

(I) Incident occurred within the family members or close A
relations;
(m) The conduct and behaviour of the accused after the
incident. Whether the accused had taken the injured/the
deceased to the hospital immediately to ensure that he/she
gets proper medical treatment? B
These are some of the factors which can be taken into
consideration while granting an appropriate sentence to the
accused. The list of circumstances enumerated above is
only illustrative and not exhaustive. In our considered view,
proper and appropriate sentence to the accused is the
bounded obligation and duty of the court. The endeavour of C
the court must be to ensure that the accused receives
appropriate sentence, in other words, sentence should be
according to the gravity of the offence. These are some of
the relevant factors which are required to be kept in view
while convicting and sentencing the accused." D
10. The general policy which the courts have followed with
regard to sentencing is that the punishment must be appropriate
and proportional to the gravity of the offence committed.
Imposition of appropriate punishment is the manner in which the
Courts respond to the society's cry for jystice against the E
criminals. Justice demands that Courts should impose
punishment befitting the crime so that the Courts reflect public
abhorrence of the crime.
11. 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
F
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 G
are relevant facts which would enter into the area of
consideration.
12. It was the duty of every Court to award proper sentence
having regard to the nature of the offence and th~ manner in
which it was executed or committed. The sentencing Courts are H
720 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.
l
·-
I

A expected to consider all relevant facts and circumstances
bearing on the question of sentence and proceed to impose a l_
......
sentence commensurate with the gravity of the offence.
13. As far as complicity of the appellant-Jameel is
concerned, the prosecution has established its case beyond
B doubt that he hit on the head with a lathi and injured Md. Hasib.
It has been established and proved from the statement of the "',-
injured PW-3 and his wife PW-2. It is also clear from the evidence .
'I
of PW-2 that she had accompanied her husband-PW-3 and
father-in-law to the Police Station.
..
14. From the medical report Ext. Ka-2 and supplementary
c medical report, it is clear that injury was inflicted on the left side
head i.e. 7 cm above left eye-brow. There was a fracture of left
parital bone and according to Dr. Amit Kumar - PW-5 the bone
of the head of Hasib was found fractured. As per Section 323
IPC, whoever, except in the case provided for by Section 334,
voluntarily causes hurt, shall be punished with the imprisonment ;~
D
of either description for a term which may extend to one year, or
with fine which may extend to one thousand rl!pees, or with both.
•· "
In the light of the evidence of the doctors' medical report, Section
323 is not at all applicable as argued by learned counsel for the
appellant. On the other hand, grievous hurt has been defined in
E
Section 320 which reads thus:-
"320. Grievous hurt.-The following kinds of hurt only are
designated as "grievous":--
First-Emasculation.
Secondly.-Permanent privation of the sight of either eye.
F
Thirdly.-Permanent privation of the hearing of either ear,
Fourthly.-Privation of any member or joint.
Fifthly.-Destruction or permanent impairing of the powers
of any member or joint.
G Sixthly.-Permanent disfiguration of the head or face.
Seventhly.-Fracture or dislocation of a bone or tooth.
Eightly.-Any hurt which endangers life or which causes the 'f

sufferer to be during the space of twenty days in severe
bodily pain, or unable to follow his ordinary pursuits."
H In view of strong medical evidence in the form of oral and

-~
•
•
JAMEEL v. STATE OF U.P. [P. SATHASIVAM, J.) 721

documentary, the injuries sustained by the injured PW-3 comes A
, ,J
under 'Seventhly' of Section 320 i.e. fracture or dislocation of a
bone. Voluntarily causing hurt by dangerous weapons or means
has been explained in Section 324 and punishment for voluntarily
causing grievous hurt is with imprisonment which may extend to
seven years and shall also be liable to fine. The trial Court as B
well as the High Court, taking note of the enmity and intention of
the accused and nature of injuries, evidence of both oral and
documentary and medical evidence, concluded and awarded
punishment under Section 308 IPC. The relevant Section is as
follows:-
"308. Attempt to commit culpable homicide.-Whoever c
does any act with such intention or knowledge and under
such circumstances that, if he by that act caused death, he
\ would be guilty of culpable homicide not amounting to
(
1
murder, shall be punished with imprisonment of either
J description for a term which may extend to three years, or D
~
with fine, or with both; and, if hurt is caused to any person
by such act, shall be punished with imprisonment of either
<...,.
description for a term which may extend to seven years, or
with fine, or with both." ·
In view of the materials placed by prosecution, analyzed by E
the trial Court and approved by the High Court, we are not inclined
to reduce the sentence. We have already pointed out about t,Qe
proof regarding enmity, intention and causing grievous hurt.
15. In those circumstances and in the light of the materials
placed, we are of the view that there is no valid ground for
~ - ,F
reduction of sentence as claimed by the appellant.
Consequently, the appeal fails and the same is dismissed.

...
-(

~
B.B.B. Appeal dismissed.

(