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2014 DIGILAW 2322 (BOM)

Chandrahas Narayan Pujari v. State of Maharashtra

2014-11-21

ANUJA PRABHUDESAI

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JUDGMENT : ANUJA PRABHUDESAI, J. 1. This appeal is filed against judgment dated 29.9.2011 whereby the Extra Joint Ad hoc Addl. Sessions Court, Sewree, Mumbai has convicted the accused for offence punishable under Section 326 r/w. 34 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 7 (seven) years and to pay fine of Rs. 10,000/- in default to suffer rigorous imprisonment for 6 (six) months. Brief facts leading to filing of the appeal are as under:- PW-2. Tapan Sikdar has agency of Bisleri Mineral Water and Monginis cake in the railway premises from CST to Dadar. On 10.11.2009 at about 7.20 p.m. while he was below the bridge of platform No. 18 of CST Railway Station, the appellant along with two others came and assaulted him by means of Koyta. He received injuries on the backside of his neck, head, right hand and wrist. He went to the police constable on duty of G.R.P. and narrated the incident. Based on the said information, PW-1. Dattatraya Kalsayyed, who was the police constable attached to CST Railway lodged FIR at Exhibit 15, pursuant to the said FIR, PW-10 Manohar Saindre registered crime under Section 307 r/w. 34 IPC was registered against the appellant and two others namely Ashok Lalit Das and Iqbal Salim Shaikh. The further investigation was handed over to PW-11. 2. The injured was referred to hospital. He was examined and treated initially at St. George Hospital and thereafter at Bombay Hospital. He visited the scene of offence, conducted the spot panchanama, collected the incriminating material from the scene of offence. He also recorded the statement of the injured and seized the clothes of the injured under panchanama at Exh. 27. The accused No. 1 came to be arrested on 24.11.2009, arrest panchanama at Exh. 16 was drawn in the presence of panchas. 3. While in the custody, accused Ashok Das - original accused No. 1 made a disclosure statement and volunteered to show the shop from where he had purchased the weapons. He prepared memorandum panchanama at Exh. 61 and pursuant to the disclosure panchanama he proceeded to the shop shown by the accused. 4. On 19.1.2010, Iqbal Shaikh, original accused No. 2 came to be arrested under arrest panchanama. While in custody, the accused No. 2 made a disclosure statement at Exh. He prepared memorandum panchanama at Exh. 61 and pursuant to the disclosure panchanama he proceeded to the shop shown by the accused. 4. On 19.1.2010, Iqbal Shaikh, original accused No. 2 came to be arrested under arrest panchanama. While in custody, the accused No. 2 made a disclosure statement at Exh. 64 and pursuant to the said disclosure statement they recovered the weapon from a hutment near St. George Hospital. The same was seized under panchanama at Exh. 63. Charge-sheet was filed against accused Ashok and Iqbal. 5. Information was received that the appellant herein was arrested by Bangalore Police in C.R. No. 85 of 2010. Custody of the appellant was taken on 4.6.2010 and was produced before the CST Railway Police Station on 5.6.2010. Supplementary charge-sheet was filed against the present appellant on 11.6.2010. 6. On committal of the case to the Court of Sessions, charge was framed and explained to the present appellant and other two accused persons for committing offence punishable under Section 307 r/w. 109 of IPC. The appellant and the other accused pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 11 witnesses. No evidence was adduced by the accused. On appreciating the evidence on record and upon considering the statement made by the Advocate for the accused and by the learned APP, the learned trial Judge held the appellant and the other accused guilty of the offence punishable 326 r/w 34 of IPC and sentenced as stated above. The appellant and the other accused were discharged for the offence under Section 109 r/w. 307 of IPC. 7. Aggrieved by the said conviction and sentence, the appellant being original accused No. 3 filed this appeal. 8. Learned Counsel Ms. Naima Shaikh submitted that she does not wish to challenge the conviction and restricted her arguments only on quantum of sentence. She has submitted that the appellant (original accused No. 3) is in prison and he is in custody from 4.6.2010. She further argued that the offence was not pre-planned, pre-mediated and that it was committed at the spur of moment. She has submitted that the appellant has already undergone more than four years in jail and that opportunity should be given to him to improve. 9. Learned APP Mr. Yagnik has argued that the appellant had inflicted injuries on the vital part of PW-2. She has submitted that the appellant has already undergone more than four years in jail and that opportunity should be given to him to improve. 9. Learned APP Mr. Yagnik has argued that the appellant had inflicted injuries on the vital part of PW-2. The injuries were serious in nature and which was led to amputation of three fingers. Considering the weapon used and the nature of the injuries, he submitted that the appellant, org. accused No. 3 does not deserve any leniency. 10. I have perused the record and considered the submissions made by the learned counsel for the appellant and the learned APP for the State. The record indicates that the PW-2 was running agency of Bisleri Mineral Water at the railway premises at CST to Dadar. He used to deliver the goods to the customers at the platform. The testimony of P.W. 1 further indicates that on 10.11.2009 at about 7.20 p.m. while he was at the platform No. 18 of CST railway station, the appellant herein and two other accused namely Ashok and Iqbal had assaulted him by means of Koyta. As a result of the said assault, he had sustained injuries on his neck, head, hands etc. Considering the fact that there is no challenge to his conviction, I do not feel it necessary to go into the aspects relating to the conviction. The only question to be considered in this appeal is whether the appellant has made out a case for reducing the sentence. In the case of Shimbhu and Another vs. State of Haryana, AIR 2014 SC 739 : 2013 ALL MR (Cri.) 3306 (SC), the Apex Court has held that:- "9. The crucial stage in every criminal proceeding is the stage of sentencing. It is the most complex and difficult stage in the judicial process. The Indian legal system confers ample discretion on the judges to levy the appropriate sentence. However, this discretion is not unfettered in nature rather various factors like the nature, gravity, the manner and the circumstances of the commission of the offence, the personality of the accused, character, aggravating as well as mitigating circumstances, antecedents etc., cumulatively constitute as the yardsticks for the judges to decide on the sentence to be imposed. However, this discretion is not unfettered in nature rather various factors like the nature, gravity, the manner and the circumstances of the commission of the offence, the personality of the accused, character, aggravating as well as mitigating circumstances, antecedents etc., cumulatively constitute as the yardsticks for the judges to decide on the sentence to be imposed. Indisputably, the sentencing Courts shall consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the crime committed." 11. Reverting to the facts of the present case, the evidence of PW-2 clearly indicates that the accused had inflicted injuries by means of Koyta on his head, neck, wrist and shoulder. This is further fortified by the evidence of PW-9 Dr. Deepak Patil who had examined the victim. The testimony of this witness indicates that the injured had suffered following injuries:- "I. Incised wound -- parietal region on head, size of injury 20 x 10 x 3 cm. II. Incised wound - back of neck, size of injury 10 x 3 x 5 cm. III. Incised wound - parietal head region, size of injury 10 x 2 x 5 cm. IV. Incised wound - Frontal region, size of injury 8 x 2 x 1 cm. V. Amputation - left ring and index fingers, upper phalanx. VI. Amputation - one finger, upper phalanx." 12. There is thus no doubt that the appellants herein had inflicted injuries by means of Koyta and it has resulted in amputation of three fingers. Nevertheless, the evidence on record does not indicate that the assault was pre-mediated but had occurred on the spur of moment. There is also no evidence to prove that the appellant has criminal antecedents and that he is a threat to the society. Considering this fact, so also considering the age of the appellant, in my considered view, an opportunity has to be given to the appellant to reform themselves. Under the circumstances, the appeal is partly allowed, while maintaining the conviction, the sentence of 7 years rigorous imprisonment is set aside. The appellant is sentenced to undergo rigorous imprisonment for five years. In addition to fine Rs. 10,000/- (Rupees Ten Thousand Only) which was imposed by the Sessions Court, the appellant is directed to pay further compensation of Rs. 20,000/- (Rupees Twenty Thousand Only), failing which the appellant shall undergo further rigorous imprisonment for six months. The appellant is sentenced to undergo rigorous imprisonment for five years. In addition to fine Rs. 10,000/- (Rupees Ten Thousand Only) which was imposed by the Sessions Court, the appellant is directed to pay further compensation of Rs. 20,000/- (Rupees Twenty Thousand Only), failing which the appellant shall undergo further rigorous imprisonment for six months. The compensation of Rs. 20,000/- as well as the fine of Rs. 10,000/- which was awarded by the Sessions Court, if recovered, shall be paid to the victim PW-2 Tapan Krishkesh Sikdar. Appeal Partly Allowed.