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2016 DIGILAW 572 (GUJ)

State of Gujarat v. Lakhan

2016-03-11

M.R.SHAH, MOHINDER PAL

body2016
JUDGMENT : M.R. Shah, J. 1. As both these appeals arise out of the impugned judgment and order passed by the learned Sessions Judge, Junagadh passed in Sessions Case No. 27 of 2006, one preferred by the State challenging the acquittal of the original accused for the offence under Section 307 of the Indian Penal Code and another appeal preferred by the State for enhancement of the sentence imposed by the learned trial Court, imposed while convicting the original accused for the offence under Section 324 of the Indian Penal Code and giving benefit of Probation of Offenders Act to the original accused, both these appeals are decided and disposed of by this common judgment and order. 2. At the outset, it is required to be noted that as such by impugned judgment and order, the learned trial Court has convicted the original accused for the offence under Section 324 of the Indian Penal Code, however thereafter has given benefit of probation to the original accused. It is required to be noted that as such the impugned judgment and order of conviction passed by the learned trial Court holding the original accused guilty for the offences under Section 324 of the Indian Penal Code has attained the finality so far as original accused is concerned and as such original accused has accepted the impugned judgment and order of conviction passed by the learned Sessions Judge convicting the original accused for the offence under Section 324 of the Indian Penal Code. Under the circumstances, the questions which are required to be considered by this Court is whether in the facts and circumstances of the case the learned trial Court has erred in not convicting the original accused for the offence under Section 307 of the Indian Penal Code, for which, he was initially charged and/or whether in the facts and circumstances of the case the learned trial Court has justified in giving benefit of probation to the original accused while convicting the original accused for the offence under Section 324 of the Indian Penal Code? 3. Shri Dabhi, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that the learned trial Court has materially erred in not convicting the original accused for the offence under Section 307 of the Indian Penal Code. 3.1. 3. Shri Dabhi, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that the learned trial Court has materially erred in not convicting the original accused for the offence under Section 307 of the Indian Penal Code. 3.1. It is submitted by Shri Dabhi, learned Additional Public Prosecutor appearing on behalf of the State that the manner in which the original accused committed the offence and caused the injury by knife on the injured witness Vijaysinh Navalsinh and the serious injuries sustained by him, learned trial Court ought to have convicted the original accused for the offence under Section 307 of the Indian Penal Code. 3.2. It is submitted that as such the original accused inflicted the injury on the injured eye witness Vijaysinh Navalsinh by knife and in the abdomen and he sustained serious injurious and was hospitalized as indoor patient for 10 days, the learned trial Court ought to have convicted the original accused for the offence under Section 307 of the Indian Penal Code. 3.3. In the alternative and in support of the Criminal Appeal No. 1392 of 2008, it is submitted by Shri Dabhi, learned Additional Public Prosecutor that in any case giving benefit of probation to the original accused while convicting the original accused for the offence under Section 324 of the Indian Penal Code cannot be sustained. 3.4. It is submitted that while giving the benefit of probation to the original accused the learned trial Court has shown undue sympathy to the original accused and has not considered the plight of the victim. 3.5. It is further submitted by Shri Dabhi, learned Additional Public Prosecutor for the State that though there was no enmity between the accused and the injured witness and for no reason the accused inflicted injury by knife on the injured eyewitnesses, the learned trial Court ought not to have shown undue sympathy to the original accused giving benefit of probation. 3.6. It is further submitted that by not imposing suitable and adequate punishment and giving benefit of probation, the learned trial Court has shown undue sympathy. It is submitted that merely because at the time of incident the accused was aged 19 years, the learned trial Court was not justified in giving benefit of probation to him. 3.6. It is further submitted that by not imposing suitable and adequate punishment and giving benefit of probation, the learned trial Court has shown undue sympathy. It is submitted that merely because at the time of incident the accused was aged 19 years, the learned trial Court was not justified in giving benefit of probation to him. It is submitted that the conduct on the part of the accused more particularly, when at the age of 19 years he was keeping the knife in his pocket, the learned trial Court ought not to have shown undue sympathy and ought not to have granted benefit of probation to him. Making above submissions and relying above the decisions of the Hon'ble Supreme Court in the case of Raj Bala v. State of Haryana and Others reported in (2016) 1 SCC 463 as well as in the case of Abdul Waheed v. State of Uttar Pradesh reported in (2016) 1 SCC 583 , it is requested to impose maximum punishment as provided under Section 324 of the Indian Penal Code. Shri Dabhi, learned Additional Public Prosecutor for the State has vehemently submitted that the aforesaid submissions is made without prejudice to his rights and contention and contention in Criminal Appeal No. 1393 of 2008 that the learned trial Court ought to have convicted the original accused for the offence under Section 307 of the Indian Penal Code. 4. Both these appeals are vehemently opposed by Shri B.C. Dave, learned advocate for the original accused. 4.1. Opposing the Criminal Appeal No. 1393 of 2008 which has been preferred by the State challenging the impugned judgment and order of acquittal passed by the learned trial Court acquitting the original accused for the offence under Section 307 of the Indian Penal Code, Shri Dave, learned advocate for the original accused has submitted that in the facts and circumstances of the case, more particularly, when the incident has taken on grave and sudden provocation and there was no intention to cause the death of complainant - injured witness, the case would not fall under Section 307 of the Indian Penal Code. It is submitted that as such learned trial Court has not committed any error in not convicting the original accused for the offence under Section 307 of the Indian Penal Code. 4.2. It is submitted that as such learned trial Court has not committed any error in not convicting the original accused for the offence under Section 307 of the Indian Penal Code. 4.2. Now, so far as Criminal Appeal No. 1392 of 2008 preferred by the State for enhancement of the sentence imposed by the learned trial Court, it is vehemently submitted by Shri Dave, learned advocate for the original accused that considering the fact that at the time of incident the accused was aged 19 years of age and incident has taken place all of sudden and in grave and sudden provocation and no serious injuries were sustained by the injured witness which has resulted into permanent partial disability, when the learned trial Court has granted the benefit of the probation, it is requested not to interfere with the same. It is submitted that after the impugned judgment and order no untoward incident has been reported. Making above submissions, it is requested to dismiss the Criminal Appeal No. 1392 of 2008. 5. Heard the learned advocates for the respective parties at length. We have perused the impugned judgment and order passed by the learned trial Court and also findings recorded by the learned trial Court. We have re-appreciated the entire evidence on record. 5.1. At the outset, it is required to be noted that as such by impugned judgment and order the learned trial Court has convicted the original accused for the offence under Section 324 of the Indian Penal Code for having caused injury by knife on the injured witness Vijaysinh Navalsinh who is practicing advocate. It is also required to be noted that so far as the impugned judgment and order passed by the learned trial Court convicting the original accused for the offence under Section 324 of the Indian Penal Code as attained the finality and as the original accused has accepted the same as not challenged the same. Under the circumstances, the only question now posed for consideration of this Court is whether in the facts and circumstances of the case is justified in not convicting the original accused for the offence under Section 307 of the Indian Penal Code for which he was charged and convicting the original accused for the offence under Section 324 of the Indian Penal Code only? 5.2. 5.2. At the outset, it is required to be noted that original accused for no valid reason and as such without any enmity with the injured eyewitness inflicted knife blow on the abdomen on the injured eyewitness. That the injured eyewitness sustained 3 cm x 4 cm - about 15 cm deep perforating small intestine stab wound that EPI gastric region near to mid line below coastal margin. Thus, the injury which was sustained by the injured eyewitness was a deep stab wound caused by the accused by knife. It appears that he was hospitalized for 10 days. As per the deposition of the Doctor Hemang Vasavada - PW No. 2 the injuries sustained by the injured eyewitness were serious and if the proper timely treatment would not have been given, would have caused the death. Considering the aforesaid facts and circumstances of the case, the learned trial Court has committed the grave error in convicting the original accused for the offence under Section 324 of the Indian Penal Code. The contention on behalf of the prosecution that case would fall under Section 307 of the Indian Penal Code, in the facts and circumstances of the case and the manner in which the incident had taken place, same cannot be accepted. Similarly, the impugned judgment and order passed by the learned trial Court giving benefit of Probation of Offenders Act to the original accused while convicting the original accused for the offence under Section 324 of the Indian Penal Code also cannot be sustained. Even the impugned judgment and order passed by the learned trial Court giving benefit of probation to the original accused, while convicting him for the offence under Section 324 of the IPC, also cannot be sustained. 5.3. In the facts and circumstances of the case, as such the learned trial Court has not committed any error in convicting the original accused for the offence under Section 324 of the IPC. However, the impugned judgment and order passed by the learned trial Court granting benefit of probation to the original accused while convicting him for the offence under Section 324, cannot be sustained. However, the impugned judgment and order passed by the learned trial Court granting benefit of probation to the original accused while convicting him for the offence under Section 324, cannot be sustained. The manner in which the accused inflicted the knife blow on the injured witness when the injured eyewitness who as such was friend of the father of the accused gave some advise being friend of his father and immediately after getting down from the motorcycle, the accused inflicted the knife blow on the abdomen of injured eyewitness. Thus, even the accused was also keeping knife in his pocket. Considering the aforesaid facts and circumstances, as such there was no question of giving any benefit of probation to the original accused. In any case, as held herein above, the original accused was required to be convicted for the offence under Section 324 of the Indian Penal Code. 6. From the impugned judgment and order passed by the learned Trial Court, it appears that the learned trial Court has shown undue sympathy and/or leniency to the accused. As observed by the Hon'ble Supreme Court in the case of Abdul Waheed (Supra), it is the duty of the Court to award proper sentence having regard to the manner in which the offence was committed. In the aforesaid decisions, it is observed by the Hon'ble Supreme Court that undue sympathy to the accused would do more harm to criminal justice system undermining the public confidence in the efficacy of the system. 6.1. In the case of Raj Bala (supra) in para 16 the Hon'ble Supreme Court has held and observed as under: "A Court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the Court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio-cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the "finest part of fortitude" is destroyed. A Judge should never feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective." 7. In view of the above and for the reasons stated above, Criminal Appeal No. 1393 of 2008 is hereby dismissed. The impugned judgment and order dated 30.01.2008 passed by the learned Sessions Judge, Junagadh in Sessions Case No. 27 of 2006 acquitting the original accused for the offence under Section 307 of the Indian Penal Code is hereby confirmed. However, impugned judgment and order giving benefit of Probation of Offender Act while convicting the original accused for the offence under Section 324 of the Indian Penal Code cannot be sustained and the same deserves to be quashed and set aside. 7.1. However, impugned judgment and order giving benefit of Probation of Offender Act while convicting the original accused for the offence under Section 324 of the Indian Penal Code cannot be sustained and the same deserves to be quashed and set aside. 7.1. In view of the reasons recorded in the judgment, Criminal Appeal No. 1392 of 2008 is hereby partly allowed and the impugned judgment and order dated 30.01.2008 passed by the learned Sessions Judge, Junagadh in Sessions Case No. 27 of 2006 is hereby modified with respect to the sentence imposed by the learned trial Court imposed while convicting the original accused for the offence under Section 324 of the Indian Penal Code and the respondent herein - original accused is hereby sentenced to undergo 2 years Rigorous Imprisonment with fine of Rs. 1000/- and in default to undergo further one month Simple Imprisonment. It goes without saying that whatever sentence is already undergone by the accused, same shall be given set off in accordance with law. At this stage, Shri Dave, learned advocate for the accused requested to grant some time to surrender to the original accused to undergo remaining sentence as per the present judgment and order is hereby granted upto 11.04.2016. Registry is directed to return the record and proceedings to the learned trial Court forthwith.