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2011 DIGILAW 1295 (BOM)

Samson Julias Crasto v. State

2011-10-14

F.M.REIS, R.P.SONDURBALDOTA

body2011
Judgment R. P. SONDURBALDOTA, J: 1. This common judgment and order disposes off the above two appeals preferred against the judgment and Order dated 26.7.2001 convicting the appellant in Appeal no. 45/2001 of the offence punishable under Section 307 of I.P.C and sentenced him to suffer rigorous imprisonment of six months and pay fine of Rs.20,000/-(Rupees twenty thousand only), in default of payment of fine the appellant was to undergo simple imprisonment of six months. On recovery of the fine, the same was directed to be paid to PW12 the victim of assault by the appellant. The Appeal no. 45/2001 challenges the order of conviction and sentence. Appeal No. 52/2001 is by the State seeking enhancement of the sentence awarded to the accused. The appellant in the Appeal no. 45/2001 will be hereinafter referred to as the appellant and the State as the respondent. 2. In short, the prosecution case is that on 21.11.1998 at about 7.30 hours the appellant attempted to commit murder of PW12 aged about 22 years by striking her with a sharp weapon on vital parts of her body while she was praying in prayer room out side the main church at Assolna. The motive for the offence was stated to be that the appellant and PW12 were in love for about 8 years and had undergone civil marriage. But subsequently PW12 rejected the appellant and refused to undergo religious ceremony of marriage with him. There were 9 incise wound upon the different parts of the body of PW12 and one abrasion. The description of the injuries read as follows:- 3. The prosecution examined 16 witnesses to establish the guilt of the appellant and appellant examined one witness in his defence. The attempt on the part of the appellant was to show that he is a respectable and non interfering person and that PW12 had been residing with him at his house. The incident of the assault was witnessed by PW10 Noel Anthony Fernandes, a relative of PW12. He deposed that on the day of the incident he had gone to the church to attend mass. The appellant had also attended 6.30 mass. When PW12 and her mother were in the prayer room the appellant entered the prayer room and assaulted PW12. The incident of the assault was witnessed by PW10 Noel Anthony Fernandes, a relative of PW12. He deposed that on the day of the incident he had gone to the church to attend mass. The appellant had also attended 6.30 mass. When PW12 and her mother were in the prayer room the appellant entered the prayer room and assaulted PW12. On hearing screams from the chapel PW10 rush to the chapel and saw that PW12 had fallen on the ground and the appellant was stabbing her with knife. He saw the appellant stabbing her twice or thrice. PW10 tried to catch the appellant but he escaped and by jumping over the wall by the side of the river, disappeared. PW10 followed the appellant to some distance and then returned to the chapel to take PW12 to the hospital. The evidence of PW10 coupled with the evidence of PW12 the victim completely established beyond reasonable doubt the fact of assault by the appellant upon PW12 with knife. In the circumstance Mr. Lotlikar, Senior Counsel appearing for the appellant submits that considering the nature of the injuries found on the body of PW12 the only offence that could be said to be have been committed by the appellant is the offence of voluntarily causing hurt by dangerous weapon or means, punishable under section 324 I.P.C. Under the Section the punishment that could be awarded to the appellant for the said offence is imprisonment of either description for a period which may extend up to three years or with fine or with both. 4. Having perused the judgment of the Sessions Court and looking to the evidence placed on record, in our opinion it would be difficult to hold that appellant had intention to kill PW12 and committed offence of attempt to commit murder punishable under Section 307 IPC. Out of 10 injuries two were found to be on vital parts of the body namely the neck and the abdomen. The injury on the neck ¼ cm deep and as regards the injury on the abdomen the certificate at Exh. 21 does not describe its depth. It appears to be only skin deep. PW15 Dr Salelkar, deposed that the two injuries could have been fatal had they gone deeper. He however does not specify the required depth of the injuries for the same to be fatal. 21 does not describe its depth. It appears to be only skin deep. PW15 Dr Salelkar, deposed that the two injuries could have been fatal had they gone deeper. He however does not specify the required depth of the injuries for the same to be fatal. Considering the nature of the injuries inflicted which have been described as simple injuries and out of which the injury to the abdomen is a superficial injury, it would be difficult to hold that there was any intention on the part of the appellant to kill PW12. Perusal of the impugned Judgment and order shows that the trial Court inferred the intention to kill of the appellant based solely on presence of two injuries on the vital parts of the body and the opinion PW15 that had the injuries gone deeper it would have been fatal. The fact of the injuries being on vital parts of the body, would have been sufficient by itself to infer the intention to kill, had the injuries been only on vital parts of the body. In this case out of 10 simple injuries two are on the vital parts. The facts alleged and established by the prosecution shows that the appellant in a fit of desperateness gone on indiscriminately inflicting blows with knife on PW12. Two of the blows landed on vital parts of the body. There is nothing on record to indicate that the appellant had aimed at vital parts of the body of PW12. In the circumstances we are inclined to hold that the facts established by the prosecution discloses the offence of voluntarily causing hurt by dangerous weapon i.e. knife punishable under Section 324 of I.P.C. 5. The appellant has been sentenced to suffer rigorous imprisonment for a period of 6 months and pay fine of Rs.20,000/-( Rupees twenty thousand only). Mr. Ferreira, learned Public Prosecutor submitted that the sentence awarded is actually appropriate for the offence punishable under Section 324 I.P.C., and was wholly disproportionate to the offence punishable under Section 307 I.P.C. Therefore, there is no need to alter the sentence. Mr. Lotlikar, on the other hand submits that the Court should take into consideration the fact of passage of 12 years since the incident. During this period the life has moved on. The appellant has a regular employment. He is a seaman. He has been attending his duties on the ship regularly. Mr. Lotlikar, on the other hand submits that the Court should take into consideration the fact of passage of 12 years since the incident. During this period the life has moved on. The appellant has a regular employment. He is a seaman. He has been attending his duties on the ship regularly. Whenever he had to sail out of India, he has been regularly seeking permission of this Court. Further he is now happily married and has a family to look after. In the circumstance the Court should be considered it and not disturb his family as award of substantial punishment would throw his whole life into termite. There would be serious prospect to he loosing a job. 6. Strangely the appellant herein has not been in custody even for a single day. After the incident, he had secured anticipatory bail which continued during the trial. During the course of trial he was exempted from appearance on account of his service on the ship. The trial however, was not hampered. After he preferred this appeal the substantive sentence came to be suspended. On admission of the appeal he deposited the fine amount of Rs.20,000/-( Rupees twenty thousand only) in the Sessions Court. 7. Taking into consideration the above facts, the number of injuries caused to PW12 and the trauma that she must have gone through on account of the assault, in our opinion the appropriate punishment to the appellant would be rigorous imprisonment of two weeks and fine of Rs.50,000/- ( Rupees fifty thousand only) which on deposit shall be paid over to PW12. The appellant shall surrender before the Sessions Court, Margao on 15.10.2011 to undergo the sentence. He shall deposit balance amount of fine of Rs.30,000/- (Rupees thirty thousand only) before the Sessions Court, Margao within a period of two weeks from 15.10.2011. In the event of failure to deposit the fine, he shall undergo simple imprisonment for one week. 8. Criminal Appeal No. 45/2001 is partly allowed and Criminal Appeal No. 52 of 2001 is dismissed.