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2016 DIGILAW 55 (GUJ)

State of Gujarat v. Chamar Jagabhai Nathabhai

2016-01-08

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. The State of Gujarat by way of filing Criminal Appeal No. 1281 of 2004 and the accused by way of filing Criminal Appeal No. 1293 of 2004, before this Court have questioned the impugned judgment and order dated 17.06.2004 passed by the learned Additional Sessions Judge, Dhrangadhara in Sessions Case No. 32 of 2000 whereby the original accused has been sentenced to three years rigorous imprisonment and fine of Rs. 300/-, in default, rigorous imprisonment for nine months for the offence under section 307 of Indian Penal Code. The accused has also been sentenced to four year's rigorous imprisonment and fine of Rs. 100/-, in default, rigorous imprisonment for one month for the offence under section 504 of Indian Penal Code. The trial court granted benefit of set off and directed the sentences to run concurrently. Criminal Appeal No. 1281 of 2004 is filed for enhancement of the sentence awarded by the trial court whereas Criminal Appeal No. 1293 of 2004 is filed against the conviction. 2. It is the case of the prosecution that on 05.07.2000, at about 09.00 am the complainant alongwith police constable Vijubha Prithvisinh and Dudhabhai Dahyabhai went to Harijanvas to inspect the house of Dudhabhai and at that time at about 09.30 am, while returning, original accused No. 1 - present appellant struck a dharia on the back side of Dudhabhai's head. It is the case of the prosecution that wife of accused No. 1 - original accused No. 2 said foul words and thereafter both ran away. The injured was thereafter taken to hospital for treatment. 2.1 A complaint was lodged accordingly and pursuant to the complaint, investigation was carried out. After investigation, chargesheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced the following witnesses as oral evidence whose evidence have been read out before us: P.W. No. Name of Witness Exhibit No. 1 Sureshchandra Dixit 19 2 Ishwarbhai Patel 22 3 Nagarbhai Punjabhai 25 4 Dudabhai Dahyabhai 27 5 Panchnal Kanjibhai 29 6 Revabhai Bavabhai 30 7 Motibhai Amrabhai 32 8 Doctor mushtq Gulamrasoolbhai 33 9 Vijubha Zala 35 10 Kasambhai Saiyed 36 11 Harshadkumar Dave 40 2.3 The prosecution also relied upon the following documents as documentary evidences which have been perused by us: Sr. No. Name of Document Exhibit No. 1 Yadi of statement 20 2 Original statement 21 3 Yadi 23 4 Map 24 5 Original complaint 26 6 Panchnama of Mark 18(4) 31 7 Medical Certificate 34 8 Application for police protection 37 9 True copy of station diary entry no. 8/00 38 10 Panchnama of scene of offence 41 11 Panchnama 42 12 Office copy of sending muddamal to FSL 43 13 Receipt by FSL 44 14 FSL report 45-46 2.4 At the end of the trial and after recording the further statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted original accused as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court, the present appeals have been preferred by the State and original accused No. 1. 3. Mr. L.R. Poojari, learned APP appearing for the State has submitted that the sentence imposed upon original accused is on lower side and inadequate looking to the gravity of the offence. He submitted that the sentence is required to be enhanced looking to the evidence of witnesses and the documents on record. 4. Mr. Vyas, learned advocate appearing for the respondent - accused submitted that considering the facts and circumstances of the case, this appeal does not call for enhancement of sentence. He submitted that there are contradictions and omissions in the evidence of witnesses and therefore the accused is required be exonerated. 4. Mr. Vyas, learned advocate appearing for the respondent - accused submitted that considering the facts and circumstances of the case, this appeal does not call for enhancement of sentence. He submitted that there are contradictions and omissions in the evidence of witnesses and therefore the accused is required be exonerated. He submitted that the prosecution has failed to prove the case against the accused beyond reasonable doubt. 5. We have heard learned advocates for the parties. We have gone through the medical evidence on record. It is well settled that a question of a sentence is a matter of discretion and when discretion has been properly exercised along accepted judicial lines, an appellate Court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment. In a matter of enhancement, there should not be interference when the sentence passed imposes substantial sentence. Interference is only called for when it is manifestly inadequate. 6. Having considered minutely the evidence on record, oral as well as documentary, which we have appreciated, re-appreciated and reconsidered in light of the latest decisions of the Apex Court we find that the finding of facts as far as the conviction of the original accused under Sections 307 and 504 of Indian Penal Code is concerned, the same is just and proper. The evidence of witnesses is corroborated by the medical evidence. P.W. 8 - Dr. Mustaqbhai Ahmedbhai is the Medical Officer who had treated the injured Dudhabhai. This witness has stated that the injury sustained by the injured witness was possible by way of a dharia. The injury certificate in this regard has been adduced by us. The injured had sustained CLW 12 x 1 cm semilunar shape injury over both parietal region & red margin. We therefore are of the view that the conviction recorded by the trial court under Section 307 & 504 of Indian Penal Code. The appeal filed by the accused is therefore required to be dismissed. 7. Having satisfied ourselves as to the correctness of the conviction of the accused by the trial court, we will now consider the question of sentence. The trial court imposed the punishment of sentence as noticed above. It is against this quantum of punishment, the appeal for enhancement is filed by the State. 7. Having satisfied ourselves as to the correctness of the conviction of the accused by the trial court, we will now consider the question of sentence. The trial court imposed the punishment of sentence as noticed above. It is against this quantum of punishment, the appeal for enhancement is filed by the State. We find that the learned Judge of the trial Court in fact has committed a serious error in imposing the sentence upon the accused inasmuch as the accused was found guilty of offence under Section 307 of Indian Penal Code and Section 307 of IPC imposes an obligation on the court convicting the accused of that offence to impose a maximum sentence of 10 years. 7.1 Section 307 of Indian Penal Code reads as under: "307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned." 7.2 Moreover, recently, it has been held by the Hon'ble Apex Court in the decision in the case of Raj Bala v. State of Haryana and Others etc. in Criminal Appeal Nos. 1049 to 1050 of 2015, decided on 18/08/2015, in para 1 and 2 as under: "1. In Gopal Singh v. State of Uttarakhand, while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:-- "Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment." [Emphasis added] 2. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat, it has been held that:-- "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be--as it should be--a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N." [Emphasis supplied] And again:-- "The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N." [Emphasis supplied] And again:-- "The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"." 7.3 We think that, imprisonment for a period of 7 years ought to have been imposed upon the accused under Section 307of Indian Penal Code. However, we are of the view that considering the fact that the offence is of the year 2000, and 15 years have passed coupled with the fact that accused No. 1 is now aged, we think it fit not to enhance the sentence imposed upon the accused on the peculiar facts and circumstances of the case. 8. In the premises aforesaid, appeals are hereby dismissed. The judgement and order dated 17.06.2004 passed by the Additional Sessions Judge Dhrangadhra in Sessions Case No. 32 of 2000 is confirmed. The accused shall surrender within a period of ten weeks to serve out the remaining period of sentence. R & P to be sent back forthwith.