Shri Maharu Bhila Khairnar vs State Of Maharashtra
2002 Latest Caselaw 989 Bom

JUDGMENT

J.G. Chitre, J.

1. Shri Anilkumar Patil with Shri Sandeep Salunke for the appellant. Shri Saste, A.P.P. for the prosecution. Heard at length in context with the evidence on record.

2. The appellant is hereby assailing correctness propriety and legality of the order of conviction and sentence passed by the Additional Sessions Judge. Malegaon in Sessions Case No. 81 of 1998 wherein he convicted the appellant of the offence punishable under Section 304(II), 323, 504 of Indian Penal Code. He inflicted sentence of rigorous imprisonment for five years and to pay a fine of Rs. 7000/-, in default to undergo rigorous imprisonment for six months for the offence punishable under Section 304(II) of I.P.C. The sentence of simple imprisonment for six months and to pay fine of Rs. 500/-, in default to undergo simple imprisonment for 15 days has been inflicted for the offence punishable under Section 323 of I.P.C. The sentence of simple imprisonment for three months and fine of Rs. 250/-, in default to undergo simple imprisonment for 10 days has been inflicted for the offence punishable under Section 504 of Indian Penal Code. The substantive sentences have been directed to run concurrently.

3. Prosecution case in brief is that, both the appellant and deceased Shravan are having lands adjoining to each other in the precincts of Girnar village. Tal. Malegaon. On 8/8/1998 at about 9.30 A.M. deceased Shravan and his son P.W. Sharad had come to their filed by riding a motorcycle. They came to common Bandh of the fields and found that some thorny bushes were placed on the common Bandh. They started removing those thorny bushes from the common Bandh. At that time, as per prosecution case, appellant came there and asked them not to remove those thorny bushes. There was altercation between Shravan and Sharad on one side and appellant Maharu on the other side. At that time the appellant was possessing a spade. In the said quarrel, he gave a blow of spade on the shoulder of P.W. Sharad and gave a blow of said spade on the head of deceased Shravan. Both Shravan and Sharad received injuries on account of blows given by the appellant by means of spade. Shravan fell down. Adjoining persons came there, which included Pandit Khairnar. He learnt about the incident from Ahilyabai Nmadeo and thereafter he made arrangement for taking both Shravan and Sharad to hospital. Four persons brought Shravan to road, waited for a jeep and took him to Wadia Hospital, Malegaon, where preliminary medical aid was given to Shravan and they were advised to go to Nasik Civil Hospital. When they were proceeding in a jeep from Malegaon to Nasik alongwith Police Patil and were near village Saundane, the persons noticed that blood was oozing from the nostrils of deceased Shravan. Therefore, they returned back to Malegaon Police Station and lodged the F.I.R. but in that process Shravan had lost his life. The crime was registered in which investigation started which resulted in a trial which was conducted by the Additional Sessions Judge, who lastly passed the judgment which included the order of conviction of sentence which has been assailed by the appellant by this appeal.

4. Shri Patil firstly argued the case on merit by canvassing the innocence of the appellant for acquittal but thereafter very correctly turned to the point of reduction of the sentence, so far as offence punishable under Section 304(II) and Section 323 of I.P.C. He contended that there was no evidence at all for justifying the conviction and sentence in respect of offence punishable under Section 504 of I.P.C.

5. Shri Patil submitted that normally and generally all the villagers cultivating the lands, do possess agricultural implements like axes, pick axes, spades, thick wooden sticks and therefore, it cannot be said by any stretch of imagination that appellant had come there with preparation of committing the murder of deceased Shravan. He submitted that appellant had taken the defence of right of private defence in respect/of the property and person also. Therefore, the evidence has to be assessed from that angle and if so assessed, the sentence which has been inflicted on the appellant is severe and needs a reduction from all corners. He submitted that Shravan. Sharad and the appellant were cultivating the lands and were residing in village. Both were claiming their rights in respect of said common Bandh. Shravan and Sharad were removing thorny bushes and the appellant was preventing. It means that they were concerned with assertion and protection of the right in respect of the property. Even prosecution case also shows, as submitted by Patil, that there was a quarrel and in the said quarrel the blows of spade were given, one was given on the shoulder of P.W. Sharad and another on the head of deceased Shravan. Therefore, it cannot come under purview of Section 302 of Indian Penal Code and it has been rightly held by Additional Sessions Judge that the offence which was proved by the prosecution fell under the provisions of Section 304(II) of I.P.C.

6. Shri Patil submitted that the learned trial Judge committed error in assessing the magnitude of said fact while imposing sentence. According to Shri Patil, the sentence should have been very much less than what has been inflicted. So far as substantive sentence is concerned. Shri Patil submitted that the sentence of fine was not necessary at all because, as the prosecution evidence shows that the appellant was a poor agriculturist and therefore, there was no need of punishing him by sentencing to pay heavy fine. He prayed for setting aside the sentence and fine.

7. Shri Saste, Additional Public Prosecutor justified the order of conviction and sentence. He submitted that the sentence which has been inflicted on the appellant is proper, keeping in view that Shravan has lost his life. He pointed out the medical evidence showing two injuries on the head of deceased, justifying the quantum of the sentence. He justified the order of sentence under Section 504 of Indian Penal Code and prayed that the appeal be dismissed.

8. Section 504 reads:

"Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punishable with etc. etc."

Therefore, for the purpose of proving the offence which is punishable under provisions of Section 504 of I.P.C., it is necessary that there have to be some words uttered written, indicated or communicated to a person with the intention of insulting him and thereby such person should be provoked or those words should be uttered written, indicated or communicated to such person with intention and knowledge that by getting provocation from it such person would break the public peace or commit any other offence. For that purpose the complainant in a private case or a prosecution in a case, brought to the Court on police report should adduce such evidence which would bring home all necessary ingredients indicated by Section 504 of I.P.C. and for that purpose the exact words uttered, written, indicated or communicated are to be brought on record as they are, which would enable the Court to assess whether by hearing such words, reading those words, by writing those words, whether such person is likely to be provoked to such an extent which would make him to break the public peace or commit any other offence, which would enable the Court to come to a conclusion whether it was an act with intention of insulting that person. It is a matter of experience that some words or abuses are uttered between persons even friends or family members without meaning anything. Some abuses are, as experience indicates, used as a matter of habit without meaning thereby anything. Therefore, evidence has to be adduced to show that some words were used with intention of insulting that person and thereby making him to break public peace or commit any other offence. Anything short of it would not be proving the offence which is punishable under Section 504 of I.P.C.. The learned trial Judge unfortunately, as it appears, has not considered the texts of Section 504 before convicting and sentencing the appellant for that offence. Therefore, the submission of Shri Patil on this aspect stands upheld and the order of conviction and sentence passed against the appellant for the offence punishable under Section 504 of I.P.C.. has tok be set aside. Like this case, in number of cases the subordinate Courts do pass the order of conviction and sentences in context with Section 504 and therefore, the exact meaning of Section 504 has been elaborately explained.

9. Though it appears from the medical evidence, that there are two wounds on the head of deceased Shravan, in fact the Medical Officer has committed a mistake in describing one wound as two wounds. Such a mistake has been committed by him because, he did not understand that by handle of the spade and by the top portion o the spade, such injuries can be caused which would show appearance of two injuries in the same region. It has been fortified by P.W. Sharad who has categorically stated that a blow was given by the appellant.

10. The sentence has to be always appropriate to the act committed by the accused. It should be deterrent for a serious act done by the accused for punishing him for vindicating injustice, injury of aggrieved person and for alarming the like minded persons but when it is not so, the sentence should never be disproportionate to the act committed or intention behind committing that act itself. It is common experience that such quarrels do occur between agriculturist on account of their disputes relating to cultivation right, the boundaries of fields. Being devoid of good social atmosphere and education, those unfortunate persons abruptly resort to quarrels and assault and while venting out their feelings they assault by any instrument in the hand or immediately obtainable. Generally, they possess thicksticks, spades, axes, pick axes and they use it at the spur of moment spontaneously and thereby do cause injuries to farmers. In very few cases the blows are given with intention of causing serious damages to the body of adversary. A Magistrate or a Judge has to understand the situation, by informing himself of the situation in which such persons act and react. Here in this case, the things came suddenly to altercations, thereafter to quarrel and thereafter to assault. Even Sharad did not say that there was any other intention behind giving such a blow. It was for the purpose of venting out his feeling or for giving a lesson to Shravan and Sharad that the appellant assaulted them with spade and nothing more than that. Thereafter, five years rigorous imprisonment is disproportionate to the act, committed by the appellant.

11. So far as the offence punishable under Section 304(II) of I.P.C.. is concerned, there is sufficient evidence on record in the nature of evidence of P.W. Sharad, the victim, which has been corroborated by the evidence of Ahilyabai, Nababai, Guntabai, Pandit and Medical Officer. Counsel appearing for the appellant. Shri Patil, has not been able to shows the said finding to be wrong. This Court comes to a conclusion that for that offence the conviction is correct, proper and consistent with the evidence on record though this Court has expressed his opinion in respect of sentence.

12. Fine of Rs. 7000/- is totally disproportionate to the act alleged and proved to have been committed by the appellant. When substantive sentences have been inflicted on him, fine of huge amount was totally not warranted. The fine has to be always proportionate to the act done and capacity of the accused to pay it. Heavy amount of fine should not be inflicted on poor persons unless, the act committed by them, the offence committed by them really requires. Therefore, the amount of Rs. 7000/- as fine, has to be reduced to a reasonable sum of Rs 500/-.

13. For an offence punishable under Section 323 the fine of Rs. 500/- is not at all needed. It deserves to be reduced to Rs. 100/-. The substantive sentence has been directed to run concurrently and it would run concurrently with substantial sentences which has been imposed on the appellant for offence punishable under Section 304(II) and therefore, there is no need of reducing it. In fact rigorous imprisonment for six months was not at all needed to have been inflicted. This Court expresses its displeasure in that context.

14. Thus, the appeal stands partly allowed.

The order of conviction in respect of offences punishable under sections 304(II) and 323 of Indian Penal code are hereby confirmed. The sentence of fine is hereby modified. The appellant to pay fine of Rs. 500/-, in respect of an offence punishable under Section 304(II) of I.P.C. and to pay fine of Rs. 100/- in respect of offence punishable under Section 323 of I.P.C., in default of payment of fine in respect of offence punishable under Section 304(II) of I.P.C.. the appellant shall undergo S.I. for a month. For non payment of fine in respect of offence punishable under Section 323 of Indian Penal Code, the appellant shall undergo S.I. for seven days. No interference in respect of order of disposal of muddemal property. The appellant has undergone sufficiently long sentence, therefore, this Court finds that substantive sentence in context with an offence punishable under Section 304(II) of I.P.C. shall be the sentence which the appellant has already undergone. He shall not undergone further sentence.

The order of conviction in respect of Section 504 of Indian Penal Code stands set aside and the appellant stands acquitted of the charge in context with the said offence.

The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar of this Court.