Bombay High Court
The State Of Maharashtra vs Shripati Rama Kanase & Ors on 8 August, 2016
Bench: Naresh H. Patil
1 of 24 APEAL.325.1998
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.325 OF 1998
The State of Maharashtra Appellant
versus
1. Shripati Rama Kanase,
Age 50 years, Occ.Agri;
2. Annappa Shripati Kanase,
Age 55 years,
3. Appa Shripati Kanase,
Age 27 years,
All R/o.Kardyal, Tal.Kagal, Dist.Kolhapur Respondents
Mrs.M.M.Deshmukh, APP, for Appellant-State.
Mr.Tejas Hilage for Respondent nos.2 and 3.
CORAM : NARESH H. PATIL AND
PRAKASH D. NAIK, JJ.
Date of Reserving the Judgment : 23rd June 2016
Date of Pronouncing the Judgment : 8th August 2016
JUDGMENT - (Per : Prakash D. Naik, J.) :-
1. This appeal is preferred by the Appellant-State of Maharashtra
under Section 378(1) and 377(1) of Code of Criminal Procedure,
1973 (`Code'). The Appellant had challenged the judgment and
order of acquittal passed by learned Second Additional Sessions
2 of 24 APEAL.325.1998
Judge, Kolhapur in Sessions Case No.212 of 1996. The Appellant
also seeks enhancement of the sentence awarded by the said Court in
the aforesaid judgment.
2. Respondents were prosecuted for offence punishable under
Section 302 read with Section 34 of Indian Penal Code, 1860 (`IPC')
and they were tried before the Court of Second Additional Sessions
Judge, at Kolhapur, vide Sessions Case No.212 of 1996.
3. Brief facts of the prosecution case are as follows :
(a)
The accused no.1-Respondent no.1 is the father of
accused nos.2 and 3-Respondent nos.2 and 3;
(b) The daughter of accused no.1 was married to Gundu
Satvekar (deceased). The deceased was residing at village
Arjunwada. He was looking after his agricultural lands. The wife of
the deceased was cultivating the said land by bringing some persons
from the village of her parents namely Kardyal. However, Gundu
(deceased) had objected for such an arrangement;
(c) The wife of the deceased had brought persons from her
parental village for agricultural work two days prior to the incident
in question. The said persons were driven away by Gundu and he
was annoyed with his wife;
(d) The first informant is the brother-in-law of the deceased.
There were repeated quarrels between Gundu and his wife. Gundu
3 of 24 APEAL.325.1998
was also suspecting the character of his wife and was annoyed with
the engagement of persons from village Kardyal for cultivation of
land by his wife;
(e) On 21 July 1996, the complainant was informed by one
Parsu Satvekar that his brother-in-law Gundu is being assaulted by
the accused and they have carried him by tying his hands and legs
with the help of stick towards the area of village Kardyal;
(f) The complainant approached the Police Patil of the
village and informed him about the incident. Both of them
proceeded to Police outpost and gave information about the incident.
Police then tried to search the injured. He was found lying at some
distance from the border of river. He had found sustained injuries on
his person. The injured was admitted to hospital at Chikhali. The
incident was then intimated to Murgud Police Station. The injured
succumbed to the injuries. On the basis of statement of Dinkar Patil,
First Information Report (`FIR') was registered vide CR No.38 of
1996 for offence punishable under Section 302 read with Section 34
of IPC;
4. The investigating officer conducted the investigation.
Statements of witnesses were recorded. On completing the
investigation, a charge sheet was filed before the concerned Court
and the case was committed thereafter to the Court of Sessions;
5. The Sessions Judge framed the charge vide order dated 22
January 1997 against the Respondents. The charge was framed
under Section 302 read with Section 34 of IPC. The accused had
pleaded not guilty and claimed to be tried.
4 of 24 APEAL.325.1998
6. The prosecution examined thirteen witnesses in support of its
case. The complainant was examined as Prosecution Witness (`PW')
no.9. The doctor who treated the deceased and also conducted the
post mortem, was examined as PW No.11. the prosecution examined
three eye witnesses to the incident, viz. PW No.3 Dadasaheb Patil,
PW No.4 Tanaji Satvekar and PW No.7 Smt.Tarubai Satvekar.
Investigation was conducted by PW No.13 who submitted a report
under Section 173 of the Code.
7.
The Additional Sessions Judge recorded evidence of the
witnesses, exhibited relevant documents in evidence and also
recorded statements of accused under Section 313 of the Code. The
said Court convicted the accused for offence punishable under
Section 304, Part-II, of IPC. Accused no.1 was sentenced to suffer
simple imprisonment for two months and to pay fine of Rs.1,000/- in
default to suffer simple imprisonment for one month. Accused nos.2
and 3 were sentenced to suffer simple imprisonment for eight
months each and to pay a fine of Rs.1,000/- in default to suffer
simple imprisonment for one month each. The Additional Sessions
Judge has arrived at the conclusion that the guilt of the accused is
proved beyond reasonable doubt. However, in paragraph 102 of the
judgment, it is observed that offence under Section 302 of IPC is not
made out and the case falls within the purview of Section 299 i.e.
culpable homicide not amounting to murder and the accused could
be convicted under Section 304, Part-II, of IPC. It was opined that
there was no intention to kill the deceased by the accused.
5 of 24 APEAL.325.1998
8. The Additional Sessions Judge in paragraph 105 of the
judgment has assigned reasons for taking a lenient view on the
sentence to be imposed upon the accused, who were convicted for
the said offence. It is observed that there were no antecedent against
the accused. Accused no.1 was aged about 60 years and he was a
senior member of family. Accused nos.2 and 3 were bachelors and
young boys. Accused had no intention to kill the deceased, who is
the son-in-law of accused no.1 and brother-in-law of accused nos.2
and 3. It appears that the accused wanted to teach a lesson to the
deceased on account of ill-treatment given to the daughter of
accused no.1 and sister of accused nos.2 and 3. Accused belongs to
shepherd community and are financially poor. Taking into
consideration the said circumstances, a lenient view is being shown
while awarding sentence to the accused.
9. In view of the aforesaid judgment and order, the State had
preferred an appeal and challenged the acquittal of the accused for
offence under Section 302 of IPC and alternatively it was prayed that
sentence imposed on the accused may be enhanced, in the event the
appeal against acquittal is not allowed.
10. We have heard learned APP for Appellant-State and learned
counsel for Respondents. During the course of hearing it was
pointed out that Respondent no.1/original accused no.1 has expired
on 31 August 2012. The said fact is also reflected in the report
submitted by Assistant Police Inspector, Murgud Police Station to the
Assistant Registrar of this Court vide communication dated 23 July
2015. Hence, appeal as against Respondent no.1/accused no.1
6 of 24 APEAL.325.1998
stands abated. It is pertinent to note that the Respondents/accused
had not preferred any appeal challenging the impugned judgment
and order convicting them for offence under Section 304, Part-II of
IPC. However, learned counsel appearing for the Respondents
submitted that he has a right to plead for acquittal even in the appeal
preferred by the State. Learned counsel for Respondents took
recourse to Section 377(3) of Code, which reads as follows :
"377. Appeal by the State Government against
sentence.-
(1) ...
(2) ...
...
...
...
...
(3) When an appeal has been filed against the sentence
on the ground of its inadequacy, the Court of Sessions or, as
the case may be, the High Court shall not enhance the
sentence except after giving to the accused a reasonable
opportunity of showing cause against such enhancement
and while showing cause, the accused may plead for his
acquittal or for the reduction of the sentence."
There is substance in the submission advanced by learned counsel for
the Respondents, which is apparent from the aforesaid provision,
which has been incorporated vide amendment which has come into
force on 23 June 2006. It is categorically stated that the Court of
Sessions or the High Court shall not enhance the sentence except
after giving to the accused a reasonable opportunity of showing
cause against such enhancement and while showing cause, the
accused may plead for his acquittal or for reduction of the sentence.
Present appeal was preferred by the State challenging acquittal
under Section 302 of IPC as well as seeking enhancement of sentence
vide Section 377 of the Code.
7 of 24 APEAL.325.1998
11. We have gone through the evidence on record which includes
notes of evidence as well as documents exhibited by the Court. We
have perused the evidence of witnesses. PW No.1 Baburao Lugde is
a panch witness to the panchanama of the house of the deceased.
PW No.2 Baliram Lugde was also examined as a panch witness for
the recovery of clothes of the accused. PW No.3 Dadaso Patil is a
paan shop vendor who is supposedly an eye witness of the incident
of assault. PW No.4 Tanaji Satvekar is another paan shop vendor
who is an eye witness to the incident. PW No.5 Haribhau Bainade is
panch for the inquest panchanama. PW No.6 Parsharam Satvekar
who had witnessed the injured lying at one end of the river being
surrounded by three persons. He also gave opinion about injured
being assaulted to the complainant. PW No.7 Smt.Tarubai Satavkar
is the step mother of deceased and an eye witness to the incident.
PW No.8 Parshu Satvekar saw the accused near injured person who
was lying near the river. PW No.9 Dinkar Morey is the first
informant who is related to the deceased. PW No.10 Mahadev Patil
is Police Patil of the village who had assisted PW No.9 in lodging the
complaint with Police. PW No.11 Dr.Vishwas Shinde admitted the
victim in the hospital and treated him. He also conducted post
mortem. PW No.12 Krishna Patil is Head Police Constable attached
to Murgud Police Station and PW No.13 Rajendra Maney is PSI
attached to Murgud Police Station, who conducted the investigation
and filed a charge sheet.
12. We have heard Mrs.M.M.Deshmukh, learned APP, for
Appellant-State and Mr.Tejas Hilage appearing for Respondents/
accused. We have perused the evidence on record.
8 of 24 APEAL.325.1998
13. Learned APP made following submissions :
(a) The prosecution has proved its case beyond reasonable
doubt;
(b) The prosecution has established charge under Section
302 of IPC and the Trial Court has committed an error in acquitting
the accused for the said charge;
(c) It is submitted that assuming that conviction under
Section 304, Part-II, IPC is sustainable, the sentence imposed by the
Trial Court is inadequate and in the interest of justice, the sentence is
required to be enhanced;
(d) The reasons assigned by the Trial Court for convicting
the accused for lesser offence i.e. Section 304, Part-II of IPC, is not
convincing;
(e) The reasons assigned for showing leniency while
imposing sentence upon accused, are not cogent and since the
accused have committed heinous crime, they deserve to be punished
accordingly.
14. Learned counsel appearing for the Respondents-accused has
made following submissions :
(a) Both the accused have not preferred an appeal
challenging the impugned judgment and order of conviction under
9 of 24 APEAL.325.1998
Section 304, Part-II of IPC and they are entitled to plead for acquittal
by invoking Section 377(3) of the Code;
(b) The prosecution has failed to establish its case beyond
doubt and the accused ought to have been acquitted;
(c) The evidence of the witnesses is concocted and the fact
that it is contradictory to each other, shows that the witnesses are not
speaking the truth;
(d)
The evidence of eye witnesses does not inspire
confidence and the said witnesses ought not to have been believed by
the Trial Court;
(e) Assuming that conviction under Section 304, Part-II of
IPC is maintained, the sentence imposed upon the accused is
adequate and the same should not be interfered with after a lapse of
long period of time. The sentence is justifiable in the facts and
circumstances of present case;
(f) The prosecution has not put forth any evidence of any
person from village Kardyal. The relation between persons from
Kardyal including the complainant, near relatives of the deceased
and his wife were strained. All the witnesses examined by the
prosecution are from same village where the complainant and other
witnesses are residing;
10 of 24 APEAL.325.1998
(g) The evidence of PW No.11, the medical officer, does not
help the prosecution. The witness is not sure as to which injuries are
ante mortem and post mortem;
(h) The real FIR in the present case was not placed before
the Court. The FIR relied upon by prosecution is the second one;
(i) There are several infirmities in the prosecution case and
the benefit of doubt ought to have been given to the accused;
15.
The Trial Court had appreciated the evidence in the proper
perspective and has given the findings by assigning cogent reasons.
We find that the Trial Court has properly appreciated the evidence of
the witnesses and the documents on record while convicting the
accused for offence under Section 304, Part-II of IPC. The
submissions made by defence counsel that the accused ought to have
been acquitted, are devoid of any merits. It is true that the accused
has a right to plead for acquittal in an appeal preferred by the State
for enhancement of punishment vide amended Section 377(3) of the
Code. However, we find that the prosecution has relied upon the
evidence of three eye witnesses viz. PW No.3, PW No.4 and PW No.7.
The case is further supported by evidence of PW No.6, PW No.8, PW
No.9 and PW No.10. The medical officer who is PW No.11 has
deposed about the injuries sustained by the deceased. It is pertinent
to note that the Trial Court has believed the evidence of said
witnesses, but instead of convicting the accused for the offence of
murder under Section 302 of IPC, they were convicted for the
offence of culpable homicide not amounting to murder. We do not
11 of 24 APEAL.325.1998
find any reason to interfere in the conviction awarded by the Trial
Court for the offence under Section 304, Part-II of IPC. Learned
prosecutor submitted that in the event of confirming the order of
Trial Court for conviction under Section 304, Part-II of IPC, the
sentence may be enhanced. It was submitted that period of
imprisonment awarded by the Trial Court is lesser considering the
nature of crime committed by the accused.
16. On scanning the evidence it is apparent that PW No.3 Dadaso
Patil is an eye witness to the incident. He has attributed overt acts to
the accused. The defence has not been able to demolish his evidence
in the cross examination. The witness, however, has not attributed
specific overt act to the accused. According to him, the accused were
beating the deceased. Accused no.1 was holding a stick and two
other accused were holding a stick and iron bar respectively. PW
No.4 Tanaji Satvekar is a paan shop vendor from the village and an
eye witness to the incident. He deposed that accused have entered
the house of Gundu (deceased). They started assaulting him and on
hearing the shouts, he went to the house of the deceased. The role
attributed to the accused by the said witness is also in consonance
with the evidence of PW No.3. The evidence of PW No.7 Tarubai
Satavkar also inspires confidence. She is step mother of the
deceased. She is an eye witness of the incident. She referred to the
assault by the accused, although no specific overt act has been
attributed to them. She has referred to weapons used by the
accused. The prosecution case is further assisted by the evidence of
PW No.6 and PW No.8. PW No.6 gave information about the assault
to PW No.9. PW No.8 had seen the accused near the injured person.
12 of 24 APEAL.325.1998
PW No.9 is the brother-in-law of the deceased who lodged the FIR
after intimating about the incident to PW No.10 who is Police Patil of
the village. The evidence of PW No.10 clearly states that he along
with PW No.9 had proceeded to police station and set law into
motion. There is no reason to doubt the veracity of evidence of the
said witness.
17. From the nature of evidence brought on record, we are of the
opinion that the accused are responsible for the death of deceased
Gundu. The question is whether it is a case of murder or culpable
homicide not amounting to murder. We are posed with a question
whether sentence imposed by the Trial Court is adequate in the event
of confirming the conviction under Section 304, Part-II of IPC and
whether after a long gap of time we should interfere with the
sentence imposed by the Trial Court.
18. The Trial Court in paragraph 102 of the judgment has dealt
with the question as to whether the guilt of the accused attracts
provisions of Section 302 of IPC or otherwise. It is observed by the
Trial Court that the deceased is the son in law of accused no.1.
Accused nos.2 and 3 were his brother-in-laws. Prior to occurrence of
incident in question, there were quarrels between the deceased
Gundu and his wife and the parents of wife of the deceased were
annoyed. It is further observed that there is every possibility that
immediately on the next day morning, the accused had come to the
house of the deceased to teach him lesson. If at all there was any
intention to commit murder of Gundu, the accused would not have
left him in injured condition. There was no intention of the accused
13 of 24 APEAL.325.1998
to cause death of the deceased. There was no reason to commit
murder of the son-in-law or brother-in-law by the accused. The
Court further observed that there were injuries on the person of the
deceased. However, no vital part of the body was damaged and the
deceased died on account of severe bleeding from the injuries. It is
further observed that injuries found on the person of the deceased
show that accused had a knowledge that injuries may cause death of
the deceased. The case, therefore, falls within the purview of
culpable homicide not amounting to murder and particularly Section
304, Part-II of IPC, as there was no intention to kill the deceased.
19.
The Trial Court after giving finding of fact under Section 304,
Part-II of IPC, has further taken into consideration the aspect of
sentence to be imposed upon accused. In paragraph 105 of the
judgment, the Trial Court has observed that accused no.1 is aged
about 60 years and there are no antecedents against him. He is a
senior member of the family and the entire family is dependent upon
him as there are no earning members in the family. He is also
required to look after his widow daughter and her son. Accused
nos.2 and 3 were young boys who were bachelors and aged about 24
and 20 years respectively. Accused did not intend to put an end to
the life of the deceased and it can be gathered that at most, they
intended to teach him a lesson on account of ill-treatment being
given to his wife. The accused belongs to shepherd community and
their financial condition is very poor. On the basis of said
observations, the Trial Court had imposed the sentence as appearing
in the operative part of the order.
14 of 24 APEAL.325.1998
20. We do not find any infirmity in the findings given by the Trial
Court that offence under Section 302 of IPC is not made out but
accused deserve to be convicted under Section 304, Part-II of IPC.
The deceased was married to the daughter of accused no.1 and sister
of accused nos.2 and 3. The cause of quarrel is apparently
deployment of workers from village of wife of the deceased by her
for the purpose of cultivation of the agricultural land. It is also on
record that the deceased was suspecting the character of his wife
Taibai. The prosecution has not established strong motive for
committing the murder of the deceased. However, the circumstances
would show that the accused wanted to teach him a lesson. There is
no evidence on record to show that accused had visited the village
armed with weapons to commit murder of the deceased. No specific
overt act is being attributed to the accused. Serious injuries are not
inflicted on the vital parts of the body of deceased. From the
evidence of PW No.11 Dr.Vishwas Shinde, it is apparent that he had
examined the deceased while he was admitted in the hospital and
then conducted the post mortem after his death. He has stated that
the victim had succumbed to the injuries after he was admitted in the
hospital. From his evidence it is brought on record that the deceased
has sustained eleven injuries which included CLW over various parts
of the body, which are not vital and one incised wound over the
abdomen. It is deposed that injury nos.1 to 8 may be caused by hard
and bounded object and injury no.9 can be caused by hard and long
object. Similarly injury no.10 may be caused by hard and bounded
object. The cause of death was mentioned as shock due to severe
blood hemorrhage from wounds. The deceased has died because of
severe bleeding through the injuries. He further deposed that injury
15 of 24 APEAL.325.1998
nos.1 to 8 are possible by stick used in th crime and injury no.9 is
also possible with the stick used in the crime. Injury no.10 is also
possible with the article Exhibit-34. He further opined that injuries
are sufficient to cause death.
21. Cross examination of the aforesaid witness is, however, dilutes
the evidence in chief. It is deposed by the said witness that there was
no internal damage to the patient. Even no fracture was detected.
There was no major vascular damage. All the important internal
organs were intact and the injuries were skin deep. Injury no.10 was
also superficial. It is pertinent to note that injury no.10 was an
incised wound over abdomen. He further deposed that in the post
mortem report, he has not mentioned presence of bleeding against
the injuries. In case of forcible blow, there may be possibility of
echimosseses. No such mention is there against any injury. He has
not mentioned in the post mortem report as to whether injuries were
ante mortem or post mortem. The incised wounds were caused by
sharp and cutting instrument and in this case it may have been
caused by sharp and cutting instrument. On perusal of the post
mortem report it could be seen that opinion as to the cause of death
is mentioned as shock due to cardio respiratory failure due to
dypovolvemia due to severe blood hemorrhage due to wound.
22. Taking into consideration the evidence of witnesses, the nature
of overt act attributed to the accused, the nature of weapons used in
the crime and circumstances under which the alleged incident had
occurred, it cannot be said that there was any intention to commit
offence of murder. The requisite ingredients to constitute offence of
16 of 24 APEAL.325.1998
murder as incorporated under Section 300 of IPC are absent. The
deceased was son-in-law of accused no.1 and brother-in-law of
accused nos.2 and 3. The motive for the incident is engaging labours
from the village of accused by the daughter of accused no.1, who was
wife of the deceased and also that the deceased was suspecting the
character of his wife. From the facts it does not appear that the
accused had arrived at the village of the deceased with an intention to
commit murder. They would not have left the deceased in injured
condition if they had intention to kill him. The purport appears to be
to teach him a lesson. The cause of death primarily appears to be on
account of severe bleeding through the wounds sustained by the
deceased. The injuries do not appear to be on the vital parts of the
deceased and injury no.10 which is inflicted over the area of abdomen
is superficial as spelt out in the evidence of PW No.11. It can be said
that while inflicting injuries, they could have a knowledge that the act
done by them is likely to cause death but without any intention to
cause death. The offence would, therefore, fall under Section 304,
Part-II of IPC. We are, therefore, not inclined to interfere in the
finding of Trial Court that offence under Section 302 of IPC is not
made out and that accused could be convicted for offence under
Section 304, Part-II of IPC.
23. Learned APP submitted that even though conviction under
Section 304, Part-II of IPC is confirmed, the sentence imposed on the
accused is inadequate and they deserve severe punishment as their act
has resulted into death of the deceased. The accused had mercilessly
assaulted the deceased and therefore, the meager sentence imposed
by the Trial Court is not compatible with the crime committed by
them.
17 of 24 APEAL.325.1998
24. We have perused the reasons assigned by the Trial Court for
taking a lenient view while imposing sentence in paragraph 105 of
the impugned judgment. It is to be noted that the incident had
occurred on 21 July 1996. The accused were convicted on 30
September 1997. The learned counsel for Respondents submitted
that the accused-Respondents had undergone the sentence imposed
upon them. The accused no.1 has expired during pendency of this
appeal on 31 August 2012. The accused nos.2 and 3 i.e. Respondent
nos.2 and 3 were young boys at the time of incident. In the light of
these circumstances, it could be appropriate to analyse whether there
is necessity to interfere in the sentence imposed by the Trial Court.
25. Learned counsel for Respondent nos.2 and 3 prayed for
leniency in awarding sentence and submitted that sentence imposed
by the Trial Court may not be disturbed at this stage. It was
submitted that the accused were young boys at the time of alleged
crime which had occurred in the year 1996. They have undergone
the sentence imposed by the Trial Court. The Trial Court has
assigned reasons for taking a lenient view while imposing the
sentence. The accused are now settled in their life and sending them
to jail now, would cause hardships to them and their families.
26. Learned counsel for the Respondents placed reliance upon the
decision of Apex Court in the case of State of Punjab Vs. Mohinder
Singh1. In the said case the accused was convicted for offence under
Section 304, Part-II of IPC and was sentenced to suffer rigorous
1 1994-AIR(SC)-113
18 of 24 APEAL.325.1998
imprisonment for five years and a fine of Rs.2,000/- by the Trial
Court. The said decision was challenged in the High Court.
However, the High Court found that there was no scope for
interference with the conviction. However, sentence was reduced to
the period already undergone and fine was enhanced from
Rs.2,000/- to Rs.4,000/-. The State has challenged the sentence
imposed to the accused by preferring an appeal before the Apex
Court. While deciding the said issue, the Apex Court was pleased to
observe that High Court having confirmed the conviction under
Section 304, Part-II of IPC, was wholly unjustified in reducing the
sentence to the extent it did. The High Court should have noticed
that accused was through out on bail and he did not deserve any
sympathy because of the acts committed by him of molesting an
innocent person who took a lift in his vehicle. It was further noticed
that the accused had hardly served two and a half months jail which
is grossly inadequate. However, having regard to the fact that
occurrence took place on 5 August 1975 and having regard to the
long lapse of time, the Court did not think that the accused should be
sent to jail. The Court found that a heavy fine should meet the ends
of justice and fine was enhanced by additional sum of Rs.10,000/-
over and above what has been paid by the accused.
27. Learned counsel also placed reliance upon following
decisions :
1 2014-ALL.M.R. Bhaskar Dnyanu Shinde and
(Cri)-1609 others Vs. The State of
Maharashtra and another
19 of 24 APEAL.325.1998
2 2007-ALL.M.R. Ramesh Sadashiv Khatpe and
(Cri)-2539 others Vs. State of Maharashtra
and others
3 2001(5)- Walu @ Walmik Popat Khairnar
Bom.C.R.-604 and others Vs. State of
Maharashtra
4 1996(2)-ALL The State of Maharashtra Vs.
MR-342 Mahipal Singh Satyanarayan
Singh
5 1996-Cr.L.J. - Namdeo Kisan Bhakare Vs. State
562 of Maharashtra and another
6 1994(3)-Bom. Bistir Laxman Bhavar and others
CR-675 Vs. State of Maharashtra
In all the aforesaid decisions, the Courts have taken lenient view
while awarding sentence on account of the circumstances
enumerated therein. In the case of Bhaskar Shinde (supra), this
Court was pleased to observe that in the peculiar facts of the case
and particularly in the light of the fact that sword of the conviction
and sentence had been hanging on the head of the accused for last
sixteen years as well as trauma of the trial from 1988, the Court
acceded to request of taking a lenient view while awarding sentence
for offence under Section 304, Part-II of IPC and confined the
sentence to the period of imprisonment already undergone by the
accused. The said accused had undergone actual imprisonment of
two months. The Court, although found that the sentence was
wholly insufficient, in the facts of the case, leniency was shown to
the accused.
28. In the case of Ramesh Sadashiv Khatpe and others (supra),
this Court had considered the submissions for awarding lesser
sentence. Taking into consideration the fact that almost eighteen
20 of 24 APEAL.325.1998
years have gone by since the accused had committed the offence; the
accused had no criminal antecedents and no crimes were reported
after the incident in question; the Court had observed that no
purpose would be served by incarcerating the accused any further,
especially since they have reformed and hence the sentence imposed
on the accused was reduced to the term of imprisonment they had
undergone.
29. Similar view was taken in case of Walu @ Walmik Popat
Khairnar and others (supra). In the said decision of this Court, a
soft view was taken for awarding sentence on the ground that
incident taken place sixteen years ago and that there is nothing to
indicate that the Appellants have any adverse criminal history. It was
felt that uprooting the accused from the main stream of life after a
period of sixteen years, would serve no useful purpose.
30. In case of State of Maharashtra Vs. Mahipal Singh
Satyanarayan Singh (supra), although this Court was of the
opinion that sentence awarded to the accused under Section 392
read with Section 34 of IPC was manifestly inadequate, the Court
took into consideration the fact that incident had taken place eleven
years ago and it would be too harsh to send the accused to jail
because he had already served out the period of three months and
seventeen days sentence. The Court was pleased to maintain the
sentence which was already undergone by the accused and imposed
additional fine upon them.
21 of 24 APEAL.325.1998
In other decisions referred to hereinabove also, in the facts of
the said cases, a lenient view was taken by the Courts taking into
consideration similar circumstances.
31. We have given our anxious consideration to the fact that the
Trial Court had awarded a sentence of simple imprisonment of two
months upon accused no.1 and simple imprisonment of eight months
each upon accused nos.2 and 3. The accused did not prefer an
appeal against the said sentence which was undergone by them. The
incident in the present case had occurred on 21 July 1996. The
judgment of the Trial Court was delivered on 30 September 1997.
Accused nos.2 and 3 were young boys at the time of incident.
Accused no.1 has expired during pendency of this appeal and it is not
necessary to consider whether the sentence which was imposed upon
him was adequate or otherwise, as the appeal against him stands
abated. It would not be appropriate to send accused nos.2 and 3/
Respondent nos.2 and 3 to jail after a period of about 19 years from
the date of incident and about 18 years from the date of judgment
delivered by the Trial Court. The accused have settled in life. No
criminal history is reported against them other than this crime either
prior to the commission of the subject offence or post conviction.
The reasons given by the Trial Court are not happily worded but we
have taken into consideration the fact that even after the Trial Court
judgment is delivered, eighteen years have passed and it would be
inappropriate to disturb the living of the Respondents-accused. The
Apex Court in the case of Ashok Kumar Vs. State (Delhi
Administration)2 has held that a long protracted litigation is some
2 (1980)2-SCC-282
22 of 24 APEAL.325.1998
deterrent for a young man in his twenties. The youthful age of the
accused is a factor which deserves consideration. The offender
having served a term of nearly six months must well have realised
that the game of crime does not pay. A long period of incarceration
in the present condition of prisons may brutalise the boy and blunt
his finer sensibilities. Not that all prison terms are not deterrent but
some cases prove to be counter productive especially when the
delinquent is young. It was also observed by the Apex Court that
sentencing the cutting edge of the judicial process is the crucial
strategy of the criminal law in achieving social defence and
delinquent rehabilitation. The accused in the said case was about 19
years of age. The Apex Court further took into consideration the fact
that he was married and has three children. This factor was
considered as a measure of assurance that he will not behave
recklessly with his freedom : family life is ordinarily an assurance
against a career of crime.
32. Learned APP appearing for the Appellant-State had
vehemently assailed the Trial Court judgment and submitted that
lenient view adopted by the Trial Court is not commensurate with
the crime committed by the accused. No doubt, we have to take into
consideration the deterrent theory of punishment while awarding the
sentence. However, one cannot forget that incident had occurred
about nineteen years ago and pendency of the appeal itself amounts
to hanging sword upon the accused. It is pertinent to note that the
accused have submitted to the sentence imposed upon them and did
not chose to prefer an appeal challenging the conviction. We have
taken into consideration the peculiar facts and circumstances which
23 of 24 APEAL.325.1998
are narrated hereinabove and do not find it necessary to interfere in
the verdict of the Trial Court. On thoughtful consideration of the
submissions made by learned counsel for the accused, we find some
justification in the submission. The accused were young boys at the
time of incident. The deceased was the husband of their sister and
they had rallied to commit the alleged crime along with their father.
We are conscious of the fact that for the offence under Section 304,
Part-II of IPC, the sentence of imprisonment undergone by the
accused-Respondents is inadequate and in the ordinary course, we
could have interfered with it, but for the peculiar facts and
circumstances of present case, as mentioned hereinabove, we do not
deem it fit and proper to set aside the same. However, ends of
justice would meet by enhancing the fine. We propose to direct the
Respondent nos.2 and 3 to pay additional fine amount.
33. In view of the above discussion, we pass following order :
(i) The appeal as against Respondent no.1 (Accused No.1) stands
abated;
(ii) Appeal No.325 of 1998 is partly allowed;
(iii) The appeal challenging the acquittal under Section 302 of IPC
and also challenging enhancement of sentence to the extent of
imprisonment awarded by the Trial Court, stands dismissed;
(iv) The judgment and order of conviction under Section 304 of
IPC stands confirmed;
24 of 24 APEAL.325.1998
(v) The sentence of fine is enhanced and Respondent nos.2 and 3
are directed to pay a sum of Rs.15,000/- each towards sentence of
fine for conviction under Section 304, Part-II of IPC (over and above
whatever has been paid already by them). In default, they shall
undergo rigorous imprisonment for three months. The payment shall
be made within three months from today;
(vi) Fine, if recovered, may be paid to the children of the deceased
and, if there be none, to the wife of the deceased.
(PRAKASH D. NAIK, J.) (NARESH H. PATIL, J.)
MST
