Prabhakar vs The State of Maharashtra

S.B. Shukre, J.—This is an appeal preferred against the judgment and order dated 14th November, 2000, delivered by 2nd Additional Sessions Judge, Akola thereby convicting the appellant for an offence punishable u/s 307 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 5 years.

Briefly stated, the facts of the case are as under:

The First Information Report against the appellant has been lodged on 11.6.1998 by one Shivhari Vishwanath Tale. It is alleged that Shivhari had borrowed Rs.10,000/- from the appellant and had repaid an amount of Rs.5,300/- out of that amount some 5 to 6 months later. The appellant had, as a security for repayment of loan, got executed from the complainant an agreement of sale of his land admeasuring 1 1/2 acres for a consideration of Rs.35,000/-. It is pertinent to mention here that although the loan amount was only Rs.10,000/- what was tried to be secured by the agreement of sale was amount of Rs.35,000/ -. Digambar Vishwanath Tale (Injured) and Mahadeorao Chikate were the witnesses to the said agreement of sale.

Some time after the execution of the agreement of sale, the appellant started demanding repayment of amount of Rs.35,000/- from the complainant. The complainant would say to the appellant that he was ready to repay him amount of Rs.10,000/- together with agreed interest after adjusting an amount of Rs.5,300/- already repaid by him. The appellant, however, kept on demanding repayment of amount of Rs.35,000/-. The appellant also attempted to persuade the injured person Digamber Tale to stand in support of said demand of repayment of Rs.35,000/- made by the appellant. However, Digamber Tale refused to oblige the appellant stating that he would not tell any lie.

It appears that the appellant became displeased with Digamber Tale because of his refusal to stand by said demand of appellant. On 11.6.1998, Digambar Tale was proceeding from in front of the house of one Bhagwan Ingle at about 11.00 or 11.30 in the morning when the appellant suddenly emerged from behind Digamber Tale and assaulted Digamber Tale by means of a chopper (Koita) held by him. The appellant delivered blows of chopper to head as well as neck and shoulder of the injured person, as a result of which, the injured -Digamber fell down on the ground. Thereafter, the appellant fled from the spot.

Some other persons, on hearing the commotion came to the spot of incident and taken Digamber Tale who was bleeding profusely to hospital at Wadegaon and then Civil Hospital at Akola. The complainant also learnt about the assault on Digamber Tale and, therefore, he filed F.I.R. against the appellant.

Digamber Tale luckily survived the assault and completely recovered from the injuries sustained by him. Meanwhile, the Police registered offence punishable u/s 307 of the Indian Penal Code against the appellant and started investigation. The appellant was arrested and incriminating articles as well as weapon of offence were recovered from him. The statements of witnesses were recorded. After completion of the investigation, charge sheet came to be filed against the appellant.

The appellant was charged with an offence punishable u/s 307 of the Indian Penal Code and as he pleaded not guilty to the same he was tried by the learned Additional Sessions Judge in accordance with law. After considering the evidence and argument of rival sides, learned Additional Sessions Judge found the appellant as guilty of the offence punishable u/s 307 of the Indian Penal Code and, therefore, by his judgment and order convicted the appellant of the said offence and sentenced him to suffer rigorous imprisonment for 5 years together and fine of Rs.1,000/- with default sentence of one year by his judgment and order dated 14th November, 2000.

Not satisfied with the same, the appellant is before this Court in this appeal.

I have heard Mr.Anoop Dhore, learned counsel for the appellant and Ms.N.P. Mehta, learned A.P.P. for the respondent/State. I have carefully gone through the impugned judgment and order and also the evidence available on record.

Mr.Dhore, learned counsel for the appellant submits that the evidence brought on record by the prosecution is sketchy and is not convincing and, therefore, the conviction recorded by the trial Court is illegal and needs to be quashed and set aside.

On the other hand, Ms.N.P. Mehta, learned A.P.P. submits that the entire prosecution evidence is consistent and particularly the evidence of the injured person Digamber Tale (PW 2) convincingly establishes the offence alleged against the appellant. She submits that there is an eye witness to the incident, namely, PW 3 Gajanan Tale whose evidence is also consistent with the evidence of PW 2 Digamber Tale and that their evidence supported by medical as well as circumstantial evidence. Therefore, she submits that the impugned judgment and order cannot be considered to be perverse and arbitrary.

After considering the evidence brought on record, I find myself in agreement with learned A.P.P. for the State and I also find that it is difficult to accept the submissions canvassed on behalf of the appellant by his learned counsel.

The evidence of PW 2 Digamber Tale (Exhibit -29) is of extreme importance as he is the person, who has been injured in attack and who has survived the injuries sustained by him in the attack. These injuries were caused to his head, shoulder and other body parts, out of which, the injury to the head was serious, it being related to a vital organ of body. There is absolutely nothing in his entire evidence so as to enable the Court to disbelieve him. On the contrary, his evidence is well supported by medical evidence, which clearly establishes the injuries suffered by PW 2 in the manner stated by him and also by the evidence of eye witness PW 3 -Gajanan Tale, who is also narrating the whole incident almost in similar fashion as PW 2 -Digamber Tale.

There is also evidence showing that the weapon of offence as well as blood stained clothes were recovered at the instance of the appellant. The forensic evidence has established the fact that there were blood stains on the clothes of the appellant as well as on the chopper used by the appellant and these blood stains were of human being. The appellant has not given any explanation as regards the presence of human blood on his clothes as well as the chopper recovered at his instance. His explanation was that intermittently he suffered from a bleeding nose because of which his clothes might have been stained. He, however, does not state that on 11.6.1998 he had suffered any attack of bleeding nose. That apart, some medical examination report or some prescription from the doctor for treatment of his bleeding nose should have been produced on record by him. He has not done so and, therefore, the explanation given by him has been rightly rejected by the learned Additional Sessions Judge.

Considering the oral as well as circumstantial evidence as discussed above, I am of the opinion that the learned Additional Sessions Judge has rightly found the appellant as guilty of the offence punishable u/s 307 of the Indian Penal Code. There is no plausible reason given by the appellant as to why witnesses shall implicate him in this case. I see no reason for making any interference with the finding so recorded by the learned Additional Sessions Judge.

At this stage, learned counsel for the appellant has submitted that some leniency should be shown by this Court while sentencing the appellant as he is the sole bread winner of his family and he has no criminal antecedents. He submits that the appellant may have committed the crime on account of immature thinking on his part when he was still young being aged about 34 years. He further submits that the appellant has already undergone detention for a period of about 19 months and is presently on bail and residing in the same village as the injured person and other prosecution witnesses are. He submits that there have been no complaints received against the appellant from any of the prosecution witnesses about any criminal behavior or misconduct of the appellant. He submits that the appellant is remorseful and regrets for the act committed by him and sincerely wishes to improve his thinking and behavior for which purpose chance should be given to the appellant by reducing the sentence of imprisonment.

Learned A.P.P. for the State has opposed such prayer of the appellant contending that the offence of attempt to commit murder is serious and deterrent punishment deserves to be given to the appellant considering the fact that the attack made upon the injured person was premeditated. She submits that the sentence of 5 years of rigorous imprisonment imposed by the learned Additional Sessions Judge takes care of deterrent as well as reformative aspect of sentencing policy and, therefore, there is no need to interfere with the impugned judgment and order even on this count.

I must say that the object of the sentencing policy is not only to deter the prospective offenders from committing similar crimes but also treat the offender on certain occasions, if not in all, in such a manner that he gets an opportunity to sit quietly and make atonement for the misdeeds committed by him and emerge a reformed and improved human being after having undergone the sentence. In the case of Shyam Narain Vs. The State of NCT of Delhi, Hon''ble Supreme Court has observed that sentencing policy mainly aims at achieving a social goal making the accused realise the seriousness of his crime and protecting the society from the repeat of his crimes. It further observed that on certain occasions opportunities may be granted to the convict for reforming himself but at the same time the principle of proportionality between the offence committed and the penalty imposed should be borne in mind. While there can be no universal formula to carry out the complex exercise of awarding an appropriate sentence, the factors relevant to the sentencing calculus could be, as held in the case of Maheboobkhan Azamkhan Pathan Vs. State of Maharashtra, , "the gravity of the offence, the provocative and aggravating circumstances at the time of the commission of the crime, the possibility of the convict being reformed or rehabilitated, the adequacy of the sentence of life imprisonment and other attendant circumstances." In the case of Alister Anthony Pareira Vs. State of Maharashtra, in para 84, Hon''ble Supreme Court while speaking on sentencing policy has observed thus :

"Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."

Bearing in mind the above principles, now it has to be seen whether the sentence awarded bears proportionality to the crime committed by the appellant and goes to serve the main objects of punishment or not.

The evidence of prosecution shows that the manner in which the crime was committed by the appellant did not indicate any cruelty being exhibited or any depravity of mind of the appellant in commission of the offence. The appellant, after assaulting Digamber, had taken to heels and did not prevent other persons from taking Digamber to hospital. So, there were no provocative and aggravating circumstances. On the contrary, there were and there are now mitigating circumstances. The appellant was, at the time of commission of offence some what on the younger side of life, being 34 years old and had no criminal antecedents whatsoever. The appellant is on bail since about admission of this appeal and living in same village as the injured person and still there are no complaints known to prosecution about misbehavior or misconduct in any way on the part of the appellant. Appellant is the sole bread -winner of his family and as submitted by his learned counsel, sincerely wishes to atone for his crime and improve himself. Therefore, this is a fit case for modifying the sentence by sealing it down to a level from which proportionality between crime and punishment can be maintained and objects of punishment can also be attained.

In this view of the matter, I am of the opinion that the punishment of 5 years of rigorous imprisonment imposed upon the appellant needs to be brought down to a period of 3 years so that the above referred social goals and purposes are achieved.

In the result, this appeal deserves to be partly allowed only to the extent of reduction and modification of the order of sentence. Accordingly, the appeal is partly allowed and it is directed that the appellant shall undergo rigorous imprisonment for 3 years instead of 5 years and shall also pay a fine of Rs.1,000/-, if not paid, and in the event of default in payment of fine, the appellant shall undergo further rigorous imprisonment for a period of six months. Rest of the sentence shall stand as it is.

The appellant is entitled to the benefit of set off u/s 428 of the Criminal Procedure Code and he be given it accordingly for the period of detention already undergone by him till date.

The appellant is directed to surrender himself before the Court of 2nd Additional Sessions Judge, Akola within a period of one month from the date of order and on his surrender, the learned Additional Sessions Judge shall deal with him in accordance with law by committing him to jail to suffer the modified sentence, failing which the learned judge, shall initiate steps against the appellant for committing him to suffer the modified sentence, as per law.