SAKHARAMversusSTATE OF MADHYA PRADESH &ANR.

                     [2015] 14 S.C.R. 269


                         SAKHARAM                                 A
                               v.
           STATE OF MADHYA PRADESH &ANR.
                (Civil Appeal No. 1079 of 2015)
                                                                  B
                      AUGUST 19, 2015
          . [T. S. THAKUR, V. GOPALA GOWDA AND
                        R. BANUMATHI, JJ.]
        Penal Code, 1860 - s.325 and s.320, Clause (7) -
  Offence of voluntarily causing grievous hurt - Wordy c
 altercation - Both complainant party and accused party
 gathered and there was a fight-Appellant inflicted two lathi
 blows on the head of PW-2- Trial Court convicted appellant
  u/s.302 /PC as also u/s.307 /PC - High Court set aside
  appellant's conviction uls.302 /PC and modified his D
  conviction u/s.307 /PC as conviction uls.325 /PC - Held:
  Insofar as the injuries sustained by PW-2, injury No. 1 was
  found to be a lacerated wound size 2 x Y. cm deep upto the
  skin on the right side of the head; whereas injury No.2 was a
  lacerated wound size 2 x Y, cm deep upto the skin on the left E
  side of the head- Doctor (PW-15) opined that both the injuries
  were inflicted by a blunt and hard object - X-ray report
  revealed that there was a fracture of the frontal bone of the
 head of PW2 and there was a callus - By perusal of X-ray
 report, it is evident that PW-2 sustained fracture or dislocation F
 of the bone which clearly falls in the category of grievous
·hurt as expressly mentioned in clause (7) of s.320 /PC -
 Having regard to the nature of injuries and the X-ray report,
·the High Court rightly convicted the appellant u/s.325 IPC.
      Sentence I Sentencing - Wordy altercation - Both G
complainant party and accused party gathered and there was
a fight - Appellant inflicted two lathi blows on the head of
PW-2- Trial Court convicted appellant under s.302 /PC as
also under s.307 /PC - High Court set aside appellant's
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                             269
270        SUPREME COURT REPORTS               (2015) 14 S.C.R.


A conviction u/s.302 IPC and modified his conviction u/s.307
  /PC as conviction uls.325 IPC and sentenced him to undergo
  RI for seven years - Quantum of sentence challenged before
  Supreme Court - Held: Imposition of sentence is always a
  matter of discretion of the Court - The measure of
B punishment in a given case must depend upon nature of the
  offence, the conduct of the accused and unprotected state of
  victim - Supreme Court will not interfere with the sentence
  unless it finds. tf?at the discretion has been exercised
  arbitrarily or capriciously or on unsound principles or that
C the lower court or the High Court has not taken ihto account
  any relevant factor in imposing the sentence- In the present
  case, as the occurrence was a sudden fight and in a fit of
  passion the appellant inflicted injuries on PW-2 ..:. The
  sentence of imprisonment of seven years imposed on the
D appellant is excessive and the same is to be reduced- While
  confirming the conviction u/s.325 /PC, the sentence of
  imprisonment of seven years imposed on him is reduced to
  three years-Penal Code, 1860- s.325.
          CRIMINAL APPELLATE JURISDICTION: Criminal
E     Appeal No. 1079 of 2015.
           From the Judgment and Order dated 01.08.2013 of the
      High Court of Madhya Pradesh at Jabapur in Criminal Appeal
      No. 935 of 2004.
F          Himanshu Dubey and M.C. Dhingra, Advs. for the
      Appellant.
           Naveen and Mishra Saurabh,Advs. for the Respondents.
           The Judgment of the Court was delivered by
G          R. BANUMATHI, J. 1. Leave granted.
        2. This appeal arises out of the judgment dated
   01.08.2013 passed by the High Court of Madhya Pradesh at
   Jabalpur in Criminal Appeal No.935 of 2004 whereby the High
H. Court partly allowed the appeal thereby modifying the
      SAKHARAM v. STATE OF MADHYA PRADESH                         271
                [R. BANUMATHI, J.]

conviction of the appellant-Sakharam under Section 307 IPC        A
to Section 325 IPC and sentencing him to undergo rigorous
imprisonment for seven years and to pay a fine of Rs.2,000/-
with default clause.
       3. Briefly stated case of the prosecution is that
complainant-Ramnath (PW-1) lives in village-Devrimaal arid        B
runs a flourmill and also an agriculturist. On 09.06.2002 at
about 6.00 p.111., when Ramnath-PW-1 was working at his
flourmill, Raju came to PW-1 's flourmill and asked him whether
Ramnath called Jogi Lodhi for a meal in Jhalarfunction to which
the complainant replied in the negative and on this issue there   C
was a wordy altercation between them. At about 7.30 p.m.,
when Ramnath was returning back from his flourmill in front of
one Prahlad Vishwakarma's house, Raju wrongfully restrained
him and started quarrelling with him. At that time Vipatlal-
grandfather of Raju came thereon with lathi and hit the           D
complainant-Ramnath's head. On hearing the hues and cries
of the fight, from the complainant's side, his nephew Santu
Lodhi (PW-2) and his younger brother Badri Lodhi came to
the spot and from the side of the accused Raju's father-Tularam
armed with a sharp iron rod (Ballam) and appellant-Sakharam       E
armed with lathi came to the spot. Accused Tularam pierced
his Ballam on the left side of the chest of Sadri, when
complainant- Ramnath(PW-1) tried to prevent, Tularam also
attacked Ramnath on his left shoulder with the Ballam.
Appellant-Sakharam caused two /athi blows on the head of          F
Santu-PW-2 due to which he became unconscious. Raju threw
Ramnath (PW-1) on the ground due to which Ramnath (PW-1)
su·stained head injuries. On hearing the noise, Jogi Lodhi (PW-
10), Mahasingh (PW-5), Shivsingh Gond (PW-8) came to the
spot and intervened to stop the fight. Badri succumbed to         G
injuries.
     4. On the complaint lodged by complainant-Ramnath
(PW-1 ), FIR was registered in FIR No.58 of 2002 under
Sections 341, 323, 324, 302 and 34 IPC at police station
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272         SUPREME COURT REPORTS                 [2015] 14S.C.R.


A     Chand, District-Chhindwara, Madhya Pradesh. Injured Santu
      (PW-2) was sent to the hospital for treatment. ASl-V.P. Mishra
      (PW-16) took up the investigation and after due investigation
      chargesheet was filed against Tularam, appellant-;:.akharam,
      Raju and Vipatlal.
B        5. Upon consideration of evidence, Additional Sessions
  Judge, Chhindwada, held that the prosecution has established
  the guilt of the accused beyond reasonable doubt. Trial court
  vide its judgment dated 28.05.2004 convicted accused-Vipatlal
  and Raju under Sections 323 and 323 read with Sectiori 34
C IPC respectively and each of them were sentenced to undergo
  three months rigorous imprisonment. Raju was also convicted
  under Section 341 IPC and a fine of Rs.500/- imposeel on him
  with default clause.Accused Tularam and accused appellant-
  Sakharam were convicted under Sections 302, 302 IPC read
D with Section 34 IPC respectively and each of them were
  sentenced to undergo imprisonment for life with a fine of
  Rs.2,000/-with default clause. They were also convicted under
  Sections 307 read with Section 34 IPC, 307 IPC respectively
  and each of them were sentenced to undergo ten years
E rigorous imprisonment with a fine of Rs.500/- with default
  clause.
        6. Being aggrieved by the conviction and sentence
  awarded to them by the Additional Sessions Judge, the
F accused-Tularam and appellant-Sakharam preferred criminal
  appeal before the High Court of Madhya Pradesh Bench at
  Jabalpur. Conviction of accused-Tularam under Section 302
  IPC was confirmed. High Court vide impugned judgment dated
  01.08.2013 partly allowed appellant-Sakharam's appeal
  setting aside his conviction under Section 302 IPC and
G modified his conviction under Section 307 IPC as conviction
  under Section 325 IPC and sentenced him to undergo rigorous
  imprisonment for seven years with a fine of Rs.2,000/-. This
  appeal assails the correctness of the conviction of the

H
      SAKHARAM v. STATE OF MADHYA PRADESH                           273
                [R. BANUMATHI, J.]

appellant-Sakharam under Section 325 IPC and the sentence           A
of imprisonment imposed upon him.
      7. Learned counsel for the appellant Mr.'Himanshu Dubey
contended that a quarrel took place between the parties and
the incident happened all of a sudden and without prior meeting
of mind and accused-appellant had no common intention to            B
assault the complainant parties. It was submitted that Dr.
Moitra-PW-15 did not opine about the nature of injuries caused
to Santu-PW-2 and in the absence of evidence to prove that
the injuries sustained by PW-2 were grievous injuries, the High
Court erred in convicting the appellant under Section 325 IPC.      C
It was submitted that the sentence of imprisonment of seven
years imposed on the appellant is harsh and excessive and
prayed for reduction of the sentence.
      8. Learned counsel for the respondent Mr. Naveen D
submitted that the appellant caused two blows on the head of
Santu (PW-2) and considering the gravity of the offence and
the injuries, the High Court rightly awarded the sentence of
seven years and the same warrants no interference.
       9. Key witness Ramnath (PW-1) has clearly deposed that E
the appellant attacked Santu (PW-2) with lathi on his head
and his statement was further corroborated by the testimonies
of Maltibai (PW-3), Mahasingh (PW-5), Shanta Bai (PW-7),
Shiv Singh (PW-8), Jogi (PW-10) and Horilal (PW-11).
Appellant himself claims that he intervened to prevent the fight, F
he himself has admitted that he has caused two injuries with
lathi on the head of Santu-PW-2. In the light of the concurrent
findings of the courts below and the admission of the appellant,
inthe SLP, notice was issued only limited to the quantum of
sentence.                                                         G
      1O. Insofar as the injuries sustained by Santu-PW-2, injury
No.1 was found to be a lacerated wound size 2 x Y:z cm deep
upto the skin on the right side of the head; injury No.2 was a
lacerated wound size 2 x Y, cm deep upto the skin on the left
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274       SUPREME COURT REPORTS                 [2015] 14S.C.R.


A side of the head. Dr. Moitra-PW-15 opined that both the
  injuries were inflicted by a blunt and hard object. X-ray report
  (Ex. P-23) revealed that there was a fracture of the frontal bone
  of the head of Santu and there was a callus. Dr. Moitra-PW-
  15 neither gave any opinion regarding nature of injuries caused
B to Santu (PW-2) nor the questions were put to him. .
         11. 'Grievous hurt' is defined in Section 320 IPC. To make
  out the offence of voluntarily causing grievous hurt, there must
  be a specific hurt voluntarily inflicted and coming within the
  eight kinds of hurt enumerated in Section 320 IPC. By perusal
C of X-ray report (Ex. P-23), it is evident that PW-2 sustained
  fracture or dislocation of the bone which clearly falls in the
  category of grievous hurt as expressly mentioned in clause (7)
  of Section 320 IPC. The fracture or dislocation of bone is
  considered grievous hurt because it causes great pain and
D suffering to the injured person. Even though Dr. Moitra-PW-
  15 was not questioned about the nature of the injuries, fracture
  of the frontal bone would bring the offence within the definition
  of 'grievous hurt'. Having regard to the nature of injuries and
  the X-ray report, in our view, the High Court rightly convicted
E the appellant under Section 325 IPC and the same cannot be
  modified.
         12. For conviction under Section 325 IPC, the High Court
  imposed seven years rigorous imprisonment. The imposition '
F of sentence is always a matter of discretion of the Court. In
  imposing the sentence, Judge must consider variety of factors
  and circumstances and overall view of the situation and impose
  appropriate sentence. The measure of punishment in a given
  case must depend upon nature of the offence, the conduct of
  the accused and unprotected state of victim. The Supreme
G Court will not interfere with the sentence unless this Court finds
  that the discretion has been exercised arbitrarily or capriciously
  or on unsound principles or that the lower court or the High
  Court has not taken into account any relevant factor in imposing
  the sentence. In the present case, when the complainant was
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      SAKHARAM v. STATE OF MADHYA PRADESH                           275
                [R. BANUMATHI, J.]

returning from the flourmill, Raju restrained him and there was A
a wordy altercation. On hearing the hues and cries, both
complainant party and accused party gathered and there was
a fight and in which the appellant inflicted two lathi blows on
Santu-PW-2. As the occurrence was a sudden fight and in a fit
of passion the appellant inflicted injuries on Santu-PW-2. In B
our view, the sentence of imprisonment of seven years imposed
on the appellant is excessive and the same is to be reduced.
      13. While confirming the conviction under Section 325
IPC, the sentence of imprisonment of seven years imposed
on him is reduced to three years and this appeal is partly C
allowed.


Bibhuti Bhushan Bose                       Appeal partly allowed.