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TMI Blog2013 (2) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... was being assaulted and his life was in danger, he rushed to the shop of Gopal Singh and found that accused Gopal Singh and his brother Puran Singh were beating him with hands, fists and stones. He saw Har Singh, the father of the assailants, standing outside the shop along with two unknown persons. It was alleged that Narain Singh, PW-3, son of Prem Singh, had sustained a gunshot injury. The informant and his nephew, Surendra Singh, took the injured Gopal Singh and Narain Singh to Ranikhet Hospital. It was further alleged that the accused persons had took away ₹ 25,000/- from the shop of PW-1 and ₹ 1200/- from his pocket. Be it noted that after taking the injured persons to the hospital for treatment, an FIR was lodged with the Patwari, Bilekh. After the criminal law was set in motion, the Investigating Officer recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure, prepared the site plan, Ext.-7, recovered the pellets, seized the blood-stained clothes of the injured persons and got them examined by the doctor, PW-4, and, eventually, on completion of investigation, placed the charge-sheet for the offences punishable under Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court has found that the appellant had fired a gunshot at Narain. For the commission of the said crime, the learned trial Judge had convicted him under Section 324 of IPC and sentenced him to undergo rigorous imprisonment for three years. The High Court did not find any flaw in the analysis of the learned Sessions Judge on that count and gave its stamp of approval to the same. As far as the conviction under Section 380 is concerned, the High Court acquitted the accused-appellant. 9. Mr. Sunil Kumar Bharti, learned counsel for the appellant, contended that the finding that the appellant had fired a gunshot has not been proven beyond reasonable doubt inasmuch as the 'Katta' (country made pistol that was fired) has not been seized. In the alternative, it is urged by him that regard being had to the nature of the injury, the age of the appellant at the time of the incident, the evidence on record that there was no fracture and no injury barring a muscle injury, the rigorous imprisonment of three years is excessive and it deserves to be reduced. 10. Dr. Abhishek Atrey, learned counsel for the State supporting the judgment of conviction as well as the order of sentence, submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005) 10 SCC 581 ) wherein it was held that solely because the knife that was used in committing the offence had not been recovered during the investigation could not be a factor to disregard the evidence of the prosecution witnesses who had deposed absolutely convincingly about the use of the weapon. That apart, the Court also referred to the evidence of the doctor which mentioned about the use of weapon It is worth noting that this Court observed that though the doctor's opinion about the weapon was theoretical, yet it cannot be totally wiped out. Regard being had to the aforesaid, this Court maintained the sentence of one year rigorous imprisonment under Section 324 of IPC as imposed by the trial Court and concurred with by the High Court. 13. We may hasten to clarify that we are placing reliance on the aforesaid dictum as in the case at hand there is the doctor's evidence that the injury has been caused by the gunshot and the pellets have been recovered from the walls of the shop room of the accused appellant and no explanation for the same has been offered by the defence. What has been elicited in the cross-examination is that Prem Singh, the father of the injured, had a licen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, the 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 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." In the said case, there was a fracture of bone and the trial Court had convicted the appellant therein under Section 308 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a strait-jacket formula nor a solvable theory in mathematical exactitude. It would be dependant on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic visi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Gujarat(AIR 1996 SC 3236 ) , while this Court took note of the fact that the injury was caused by pellet, the ingredients of Section 307 of IPC were not satisfied and, accordingly, the Court converted the offence under Section 324 and sentenced the accused to undergo R.I. for one year and pay a fine of ₹ 1000/-, in default, S.I. for one month. 22. In Para Seenaiah and another v. State of Andhra Pradesh and another(2012) 6 SCC 800 ) , regard being had to the obtaining factual matrix therein, the sentence of rigorous imprisonment of one year under Section 324 of IPC with a fine of ₹ 1,000/- and, in default, imprisonment for three months was held to be justified. 23. At this juncture, we may repeat at the cost of repetition that imposition of sentence, apart from the illustrations which have been stated to be mitigating factors would depend upon many a other factors which will depend/vary from case to case. The legislature in respect of an offence punishable under Section 124 of the IPC has provided punishment which may extend to three years or with fine or with both. The legislative intent, as we perceive, is to confer discretion on the judiciary in imposition of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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