STATE OF MADHYA PRADESHversusSALEEM@ CHAMARU AND ANR.

A                            STATE OF MADHYA PRADESH
                                              v.
                          SALEEM@ CHAMARU AND ANR.

                                       JULY 13, 2005

B                     [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]


            Penal Code, 1860:

            ss. 307 and 333 and 307134 and 333134-Accused attacking a police
C constable on duty-Causing knife injuries on his neck-Convicted and
    sentenced by trial court to R.J. for 5 years-High Court reducing sentence
    to the period already undergone being about seven months only-Held,
    offences alleged are ofvery serious nature and conviction was not challenged
    before High Court-It is duty of every court to award proper sentence having
D   regard to nature of offence and the manner in which it was committed-
    Matter remitted to High Court to hear the matter only relating to sentence-
    Sentencing.

          Accused-respondents were prosecuted, inter a/ia, u/ss. 307 and 333 IPC
    for assaulting the complainant, a police constable, on his neck with sharp
E   edged weapon with intention to kill him' and for deterring him from performing
    his public duty by voluntarily causing grievous hurt with a sharp edged weapon.
    The trial court convicted accused-respondent No.2 under ss. 307 and 333 and
    accused-respondent No. 2 under ss. 307/34 and 333/34 and sentenced each
    of them for 5 years R.I. on the first count and 4 years R.I. on the second count
F   as also with fine. On appeal, the High Court reduced the sentence to the
    custodial period which was nearly seven months, observing that the accused
    were illiterate persons belonging to lower income .group and were of 23 years
    of age at the time of commission of offence.

            In the present appeal filed by the State, it was contended that the offences
G were of quite serious nature and the High Court should not have shown
    undeserved sympathy.

            Disposing of the appeal and remitting the matter to the High Court, the
    Court


H                                            562
                   STATEOFM.P. v. SALEEM@CHAMARU                             563
        HELD: 1. In the instant case, it is to be noted that the alleged offences    A
are of very serious nature and conviction was not challenged before the High
<:::ourt. 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. The
punishment to be awarded for a crime must not be irrelevant but it should            B
conform to and be consistent with the atrocity and brutality with which the
crime has been perpetrated, the enormity of the crime warranting public
abhorrence and it should "respond to the society's cry for justice against the
criminal". [565-H; 566-H]

      Sevaka Perumal etc. v. State of Tamil Nadu, AIR (1991) SC 1463, relied         C
on.

      Dennis Councle MCGDautha v. State of Callifornia, 402 US 183: 28
L.D. 2d 711, referred to.

       2.1. An attempt in order to be criminal need not be the penultimate act.      D
It is sufficient in law, if there is present an intent coupled with some overt act
in execution thereof. Section 307 IPC makes a distinction between the act of
the accused and its result, if any. To justify a conviction under s.307, it is not
essential that bodily injury capable of causing death should have been inflicted;
it is sufficient if there is present an intent coupled with some overt act in
execution thereof. Therefore, an accused charged under s.307 IPC cannot be           E
acquitted merely because the injuries inflicted on the victim were in the nature
ofa simple hurt. [567-F, G, H; 568-A)

      State of Maharasthra v. Bairam Barna Patil and Ors., [1983) 2 SCR 28;
Girija Shankar v. State of Uttar Pradesh, [2004) 3 SCC 793 and R. Parkash
v. State of Karnataka, JT (2004) 2 SC 348, relied on.                                F
      Sarju Prasad v. State of Bihar, AIR (1965) SC 84, relied on.

       2.2. Section 307 deals with two situations so far as the sentence is
concerned. Firstly, whoever does any act with such intention or knowledge,
and under such circumstances that, if he by that act caused death, he would          G
be guilty of murder, shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine; and
secondly if hurt is caused to any person by such act the offender shall be
liable either to imprisonment for life or to such punishment as indicated in
the first part i.e. 10 years'. The maximum punishment pr~\'ided for Section          H
    564                     SUPREME COURT REPORTS (2005] SUPP. 1 S.C.R.

A   333 is imprisonment of either description for a term which may extend to 10
    years with a liability to pay fine. The maximum sentence in each case goes to
    show the gravity, which is attached to respective offences. Unfortunately, High
    Court has not kept these features in vfew. [568-E-F]

         3. The High Court would hear the matter only relating to sentence, and
B   would consider factors to be placed before it and decide the question of
    sentence keeping in view the principles indicated in the judgment. [568-G)

            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 822 of
    2005.

C        From the Judgment and Order dated 2. 7.2003 of the Madhya Pradesh
    High Court in Cr!. A. No. 267 of2003.

        N.M. Ghatate, C.D. Singh; R.K. Singh, Ms. Kiran Suvama and Sanjay
    Kumar Singh with him for the Appellant.

D        Mohan Pandey, V.N. Pandey, Ms. Sneh Mishra, S.S. Bandyopadhyay,
    Syed Ali Ahmad, Syed Tanweer Ahmad and Ms. Mona Rajvanshi for the
    Respondents.

            The Judgment of the Court was delivered by

E           ARIJIT PASA YAT, J. Leave granted.

          This is another sad example where a learned Single Judge, Madhya
    Pradesh High Court, totally oblivious of the consequences has passed an
    order directing· reduction of the custodial sentence to the period already
F   undergone. We have come across a large number of such cases which have
    been disposed of in very casual and mechanical manner with no trace of
    application of mind regarding the question of sentence.

          The respondents (hereinafter referred to as the 'accused') faced trial for
    commission of offences punishable under Sections 294, 307, 333, and 506 (II)
G   of the lndian Penal Code, 1860 (in short the 'IPC'). Allegation was that on
    2.4.2002 around 9 P.M. at a public place near the bookstall on platform nos.
    2 & 3 of Harda Railway Station, they misbehaved and abused constable
    complainant Umesh Singh in vulgar words. They committed criminal intimidation
    by threatening to kill him. Accused Deepak alias Deepu was charged for
    commission of offence punishable under Sections 307 and 333 IPC for·
H   assaulting the complainant on the right side of his neck with sharp edged
           STATEOFM.P. v. SALEEM@CHAMARU [PASAYAT,J.]                      565
 weapon with the intention to kill him and also for deterring a public servant    A
 from performing his public duty by voluntarily causing grievous hurt with a
-sharp-edged weapon. Accused Salim @ Chamaru was .charged under Sections
 333 and 307 with the aid of Section 34 IPC. Learned Third Additional Sessions
 Judge, Hoshangabad found accused Salim @ chamaru guilty of having
 committed offence punishable under Section 307 read with Section 34 IPC and
 Section 333 read with Section 34 IPC. He was sentenced to undergo rigorous       B
jmprisonment for five years and four years respectively. Fine of Rs. 1,000 was
also imposed for the first named offence with default stipulation and Rs. 250
for the second named offence with default stipulation. Accused Deepak was
found guilty of offences punishable under Sections 307 and 330 IPC and was
directed to undergo custodial sentence of five and four years respectively        C
with a fine of Rs. 1,000 and Rs. 500 respectively with default stipulation. The
accused persons preferred Criminal Appeal No. 267 of 2003. At the time of
hearing of the appeal learned counsel appearing for the accused person
submitted that the fine amounts had been deposited and since they had
suffered custodial sentence of nearly six months 23 days, leniency should be
shown. It is to be noted that the conviction was not challenged. The High         D
Court found that the accused persons are illiterate persons belonging to lower
income group and on consideration of the fact that at the time of commission
 of offence they were of 23 years of age, the sentence of imprisonment
 deserved to be reduced to the period already undergone. Appeal was
accordingly disposed of.                                                          E
     Learned counsel for the appellant-State submitted that the offences
were quite serious in nature and, therefore, the undeserved sympathy shown
by the High Court and that too on clearly untenable grounds cannot be
maintained.
                                                                                  F
       In response, learned counsel for the respondents submitted that the
High Court h1,1s taken note of the ground realities and the reasons indicated
justified r~dtiction of sentence. It was further submitted that apart from the
reasons indicated other grounds were also pressed into service by the accused
persons to substantiate their prayer for reduction in sentence. These have not
been noted by the High Court.                                                     G
      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      H
    566                     SUPREME COURT REPORTS [2005] SUPP. l S.C.R.

A the nature of the offence and the manner in which it was executed or committed
    etc, This position was illuminatingly stated by this Court in Sevaka Perumal
    etc. v. State of Tamil Naidu, AIR (1991) SC 1463.

           After giving due consideration to the facts and circumstances of each
    case, for deciding just and appropriate sentence to be awarded for an offence,
B   the aggravating and mitigating factors and circumstances in which a crime has
    been committed are to be delicately balanced on the basis of really relevant
    circumstances in a dispassionate manner by the Court. Such act of balancing
    is indeed a difficult task. It has been very aptly indicated in Dennis Councle
    MCGDautha v. State of Cal/ifornia: 402 US 183: 28 L.D. 2d 711 that no
C   formula of a foolproof nature is possible that would provide a reasonable
    criterion in determining a just and appropriate punishment in the infinite
    variety of circumstances that may affect the gravity of the crime. In the
    absence of any foolproof formula which may provide any basis for reasonable
    criteria to correctly assess various circumstances germane to the considera,tion
    of gravity of crime, the discretionary judgment in the facts of each case, is
D   the only way in which such judgment may be equitably distinguished.

          The object should be to protect the society and to deter the criminal
    in achieving the avowed object of 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
E sentencing process has to be stern where it should be.
           Imposition of sentence without considering its effect on the social order
    in many cases may be in reality a futile exercise. The social impact of the
    crime, e.g. where it relates to offences against women, dacoity, kidn·apping,
F   misappropriation of public money, treason and other offences involving moral
    turpitude or moral delinq1.1ency which have great impact on social order , and
    public interest, cannot be lost sight of and per se require exemplary treatment.
    Any liberal attitude by imposing meager sentences or taking too sympathetic
    view merely on account of laps.e of time in respect of such offences will be
    result-wise counter productive in the long run and against societal interest
G   which needs to be cared for and_ strengthened by string of deterrence inbuilt
    in the sentencing system.

          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 the criminal and victim belong.
H   The punishment to be awarded for a crime must not be irrelevant but it should
           STATEOFM.P.v. SALEEM@CHAMARU [PASAYAT,J.]                         567
conform to and be consistent with the atrocity and brutality with which the          A
crime has been perpetrated, the enormity of the crime warranting public
abhorrence and it should "respond to the society's cry for justice against the
criminal".

      It is to be noted that the alleged offences are of very serious nature.
Section 307 relates to attempt to murder. It reads as follows:                       B
             "Whoever 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 murder., shall be punished with imprisonment of
        either description for a term which may extend to ten years, and shall       C
        also be liable to fine; and, if hurt is caused to any person by such
        act, the offender shall be liable either to (imprisonment for life), or to
        such punishment ·as is hereinbefore mentioned."

       To justify a conviction under this Section, it is not essential that bodily
injury capable of causing death should have been inflicted. Although the
nature of injury actually caused may often give considerable assistance in           D
coming to a finding as to the intention of the accused, such intention may
also be deduced from other circumstances, and may even, in some cases, be
ascertained without any reference at all to actual wounds. The Section makes
a distinction between an act of the accused and its result, if any. Such an act
may not be attended by any result so far as the person assaulted is concerned,       E
but still there may be cases in which the culprit would be liable under this
Section. It is not necessary that the injury actually caused to the victim of
the assault should be sufficient und.er ordinary circumstances to cause the
death of the person assaulted. What the Court has to see is whether the act,
Irrespective of its result, was done with the intention or knowledge and under
circumstances mentioned in the Section. An attempt in order to be criminal           F
need not be the penultimate act. It is sufficient in law, if there is present an
intent coupled with some overt act in execution thereof.

      It is sufficient to justify a conviction under Section 307 if there is
present an intent coupled with some overt act in execution thereof. It is not        G
essential that bodily injury capable of causing death should have been inflicted.
The Section makes a distinction between the act of the accused and its result,
if any. The Court has to see whether the act, irrespective of its result, was
done with the intention or knowledge and under circumstances mentioned in
the Section. Therefore, an accused charged under Section 307 IPC cannot be
acquitted merely because the injuries inflicted on the victim were in the nature     H
     568                      SUPREME COURT REPORTS [2005) SUPP.I S.C.R.

A of a simple hurt.
            This position was highlighted in State of Maharashtra v. Bairam Barna
      Patil and Ors., [1983] 2 SCC 28, Girija Shanker v. State ofUttar Pradesh,
    . [2004] 3 SCC 793 and R. Parkash v. State of Karnataka, JT (2004) 2 SC 348.
B          In Sarju Prasad v. State of Bihar, AIR (1965) SC 843 it was observed
     in para 6 that mere facf that the injury actually inflicted by the accused did
     not cut any vital organ of the victim, is not by itself sufficient to take the act
     out of the purview of Section 307.
          Whether. there was intention to kill or knowledge that death will be
    caused is a question of fact and would depend on the facts of a given case.
C The circumstances that the injury inflicted by the accused was simple or
    minor will not by itself rule out application of Section 307 IPC. The detenninative
    question is intention or knowledge, as the case may be, and not nature of the
    injury. The basic differences between Sections 333 and 325 IPC are that
    Section 325 gets attracted where grievous hurt is caused whereas Section 333
D · gets attracted if such hurt is caused to a public. servant.
            Section 307 deals with two situations so far as the sentence is concerned.
    Firstly, whoever 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 murder, shall be punished with imprisonment of either description for a term
~   which may extend to ten years, and shall also be liable to fine; and secondly
    if hurt is caused to any person by such act the offender shall be liable either
    to imprisonment for life or to such punishment as indicated in the first part
    i.e. I 0 years. The maximum punishment provided for Section 333 is imprisonment
    of either description for a term which may extend to 10 years with a liability
    to pay fine. The maximum sentence in each case goes to show the gravity
F   which is attached to respective offences. Unfortunately, J:Iigh Court has not
    kept these features in view.
          We remit the matter to the High Court to hear the matter only relating
    to sentence. Normally, in view of the established law.on the subject we would
    have closed the matter. But learned counsel for the accused submitted that
G   the High Court has not noted several other mitigating factors which were
    placed for consideration and granted relief on the indicated reasons. The High
    Court shall consider factors to be placed for consideration and decide the
    question of sentence keeping in view the principles indicated above.
           The appeal is accordingly disposed of.
H    RP.                                                        Appeal disposed of.