Bombay High Court
Kishore Kamlakar Patil vs The State Of Maharashtra on 9 November, 2011
Bench: R. C. Chavan
CRIMINAL APPEAL NO.9 OF 19971. This is an appeal against the
conviction of the appellants for the offence 2
punishable under Section 307 r/w Section 34 of
the Indian Penal Code (for short, IPC ) and
sentence of RI for five years and fine of
`500/-, or in default RI for three months,
inflicted by the learned Additional Sessions
Judge, Raigad in Sessions Case No.111 of 1993.
2. The appeal was dismissed by Judgment
dated 15-11-2010 after perusing the record, as
the learned counsel for the appellants stated
that the appellants had taken away the brief.
One of the appellants carried the matter to
Hon ble Supreme Court. The Hon ble Supreme
Court allowed the appeal by Order dated
15-4-2011 to the following effect:
Leave granted.
We have learned senior
counsel appearing for the appellant as well as standing counsel appearing for the State.
The High Court vide its
impugned order dated 15.11.2010 disposed of the Criminal Appeal 3
preferred by the appellant herein against his conviction for the offence punishable under Section 307 of the Indian Penal Code without hearing any counsel on behalf of the appellant. It was specifically represented by the learned counsel for the appellant that the appellants have taken away the papers from her office long back and therefore, she was not in a position to assist the Court. In spite of such representation, the High Court proceeded to dispose of the appeal with the help of the Additional
Public Prosecutor.
Needless to observe that the
High Court, in such a situation, at least ought to have arranged the services of an Amicus Curiae on
behalf of the appellant but the High Court had chosen to dispose of the appeal after hearing the Public Prosecutor, which, in our consideration opinion, is not the correct way of disposing of the
Criminal Appeal.
For the aforesaid reasons,
the impugned judgment of the High Court is set aside. Criminal Appeal No.9 of 1997 shall stand restored to its file for its disposal on merits after hearing counsel for the appellant.
Learned senior counsel
appearing on behalf of the appellant submits that the appellant will engage an advocate and proper appearance shall be filed within four 4
weeks from today.
The appellant is directed to
be released on bail to the satisfaction of the Trial Court.
The appeal is accordingly, disposed of.
This is how the appeal was heard again and is
being disposed of by this Judgment.
3. Rehearing this appeal by spending
precious judicial time on account of probably
improper understanding of legal requirements in
this behalf by me necessitates an apology and
an explanation. In the era when law makers talk
of judicial accountability and objective
evaluation of performance of Judges, where one
of the parameters suggested is number of cases
in which a Judge was reversed, reversal of a
Judgment, not because the superior Court took a
different view, but because the superior Court
found the Judge wanting in following the
procedure is, if not a stigma, at least, 5
disapproval of the manner in which the appeal
was dealt with. Therefore, I feel that it would
be appropriate to place on the record the
reasons which prevailed upon me to hear the
appeal in the first place without the
assistance of an Advocate and which has
resulted in loss of scarce judicial time, since
there would be no other occasion for a Judge to
speak otherwise than through a Judgment.
4. Incidentally, after the matter came
back from the Supreme Court, the very same
learned Advocate who had filed the Vakalatnama
on behalf of the appellants even in the trial
Court argued the matter extensively and the
matter is now being decided.
5. With a heavy backlog of cases it would
be the paramount duty of a Judge to dispose of
cases as fast as possible and to ensure that
there is no wastage of precious judicial time. 6
Yet it is possibly this very thought that has
resulted in my spending double the time for
disposal of this case. When the appeal came up
first for hearing, the counsel for the
appellant stated that the appellant had taken
back the papers. Since the appellant had not
made any arrangement for having his matter
argued, I proceeded to decide the appeal after
considering the record, as is required under
Section 386 of the Code of Criminal Procedure,
corresponding to Section 423 of the old 1898
Code. Section 386 reads as under:
386. Powers of the Appellate Court.- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may -
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or 7
committed for trial, as the case may be, or find him guilty and pass
sentence on him according to law;
(b) in an appeal from a conviction -
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the
offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any order, alter or reverse such order;
8
(e) make any amendment or any consequential or incidental order that may be just or proper:
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.
(emphasis supplied)
In view of the words and hearing the appellant
or his pleader, if he appears, in Section 386,
it was felt that if the appellant or his
pleader did not appear, it did not really
matter and the only obligation under Section
386 was to peruse the record.
6. In fact, in Shyam Deo Pandey and
others v. The State of Bihar, reported in AIR
1971 SC 1606, the Supreme Court had considered 9
the provisions of Section 423 of the 1898 Code.
In para 19 of the Judgment, the Court observed
as under:
19. A reading of Section 423 makes it clear that a criminal
appeal cannot be dismissed for default of appearance of the appellants or their counsel. The court has either to adjourn the
hearing of the appeal in order to enable them to appear or it should consider the appeal on merits and pass final orders. The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits and to pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are
before the court and the appeal is set down for hearing, it is essential that the Appellate Court should (a) peruse such record, (b) hear the appellant or his pleader, if he appears, and (c) hear the
public prosecutor, if he appears. After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present, it is not obligatory on the Appellate Court to postpone the 10
hearing of the appeal. If the appellant or his counsel or the
public prosecutor, or both, are not present, the Appellate Court has jurisdiction to proceed with the disposal of the appeal; but that disposal must be after the Appellate Court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the facts whether the appellant or his counsel or the public prosecutor is present or not. Even if the appeal is
disposed of in their absence, the decision must be after consideration on merits. Under Section 421 the Appellate Court has to decide whether the appeal is to be taken on file or dismissed summarily. The obligation of the court at that
stage is only to peruse the petition of appeal and the copy of the order or judgment appealed against. A summary dismissal of the appeal will then be legal if the Appellate Court considers that there is no sufficient ground for interference. But even in such circumstances it has been held that a summary decision is a judicial decision which vitally affects the convicted appellant and in a fit case, it is also open to be challenged on an appeal before this Court. Though a summary rejection, without giving any reasons, is not violative of any statutory provisions, such a manner of disposal removes every opportunity for detection of errors in the order. It has been further held that when an appeal in the High 11
Court raises a serious and substantial point, which is prima facie arguable, it is improper for an Appellate Court to dismiss the appeal summarily without giving some indication of its view on the point. The interest of justice and fair play require that in such cases an indication must be given by the
Appellate Court of its views on the point argued before it. The earliest decision on this aspect is the one reported in Mushtak Hussein v. The State of Bombay, 1953 SCR 809 = (AIR 1953 SC 282). The entire case law has been referred to and reiterated in Govinda Kadtuji Kadam v. The
State of Maharashtra, AIR 1970 SC 1033. The recent decision on this aspect is of Challappa Ramaswami v. State of Maharashtra, AIR 1971 SC
64. We have referred to the above decisions to show that though a
summary rejection by an Appellate Court under Section 421 may not be violative of the section, nevertheless when an arguable or substantial question arises for consideration, the Appellate Court in its order should indicate its views on such point. If the position is as indicated above that even
under Section 421, which contemplates dismissal of an appeal summarily, under Section 423, in our opinion, a very rigorous test must be applied to find out whether the Appellate Court has complied with the provisions contained therein. There is no emphasis on the perusal of the record in Section 421, whereas under Section 423 one of the 12
essential requirement is that the Appellate Court should peruse the record. There cannot be any controversy that Section 423 applies to cases in which appeals have been presented and admitted. Though Section 423 does not provide any limitation on the power of the
Appellate Court that it is incompetent to dispose of the appeal, if the appellant or his
pleader is not present, nevertheless there is a limitation. That limitation, which is provided by the section is that the Appellate Court, before disposing of the appeal, must peruse the record. No doubt if the appellant or his pleader is present, he must be heard. Similarly, if the public prosecutor is present, he too must be heard. The Legislature in Section 423 contemplates clearly that in certain cases a criminal appeal might be disposed of without hearing the appellant or any one on his behalf or the public prosecutor. The expression "after perusing such record" in the section is, in our opinion, a condition precedent to a proper disposal of an appeal either by dismissing the same or in any other manner contemplated in the said section. The powers which the Appellate Court in criminal appeals possesses are depicted in Section
423. It has power not only to
dismiss the appeal but also pass any one of the orders enumerated in
clauses (a), (b), (c) and (d) and sub-section (l-A). These provisions show the enormous powers which the Appellate Court possesses in regard 13
to a criminal appeal. These powers, it cannot be gainsaid are very vast. Any one of the orders mentioned
above, could be passed by the Appellate Court whether the appeal is disposed of on hearing or without hearing the Appellant or his pleader. These provisions, in our opinion, clearly indicate the nature of a judgment or order that is
expected of the Appellate Court in its judgment. It is in this context that the expression "after perusing such record" assumes great importance. Absence of those words in Section 421, brings out in bold contrast the difference in the nature of jurisdiction exercised under the two sections.
(emphasis supplied)
In view of this, there was no doubt in my mind
that it is not necessary to wait for the
appellant or his pleader or even the Prosecutor
for deciding the appeal on merits.
7. Incidentally, there is also a Judgment
of the Supreme Court in Ram Naresh Yadav and
others v. State of Bihar, reported in AIR 1987
SC 1500, which considers the provisions of 14
Section 386 of the new Code. The Judgment does
not refer to the previous decision of the
Supreme Court in Shyam Deo Pandey s case
(supra) and comes to an exactly opposite
conclusion that, where the appellant or his
Advocate does not appear, the Court could
dismiss the appeal for non-prosecution and
enforce discipline, whereas the Judgment in
Shyam Deo Pandey s case clearly rules out such
a course of action. In Ram Naresh Yadav s case
(supra), the Supreme Court set aside the order
of conviction and sentence, since the sentence
had been confirmed without hearing the
appellant or the counsel. The Court had also
referred to the possibility of initiating
disciplinary action against the erring
Advocate.
8. Two more Judgments of the Supreme
Court may also be noticed. In Mangat Singh v.
State of Punjab, reported in (2005) 11 SCC 185, 15
the Supreme Court was considering non-
appearance of counsel for the accused before
the High Court in an appeal against conviction
for the offence punishable under Section 302 of
the IPC. The Court held that though the High
Court had considered the matter elaborately, it
was not a substitute for the Judgment rendered
after hearing the counsel, especially in a case
in which the appellant is convicted under
Section 302. Therefore, the Judgment of the
High Court was set aside and the matter was
remanded to the High Court for fresh disposal
expeditiously after appointing an Advocate as
amicus curiae.
9. In Bapu Limbaji Kamble v. State of
Maharashtra, reported in (2005) 11 SCC 413, the
same Bench held in respect of an appeal against
conviction for an offence punishable under
Section 302 of the IPC that the High Court may
again hear the matter after appointing an 16
Advocate as amicus curiae. Both the Judgments
do not refer to the Judgment in Shyam Deo
Pandey s case.
10. In Khaili and others v. State of Uttar
Pradesh, reported in 1981 (Supp) SCC 75, when
the appeal was called out before the High
Court, the Advocate appearing on behalf of the
appellants stated that he had no instructions
in the case and he would, therefore, not argue
the case. He stated that he had addressed a
communication to the appellants asking them to
reach him immediately with fees and expenses.
In this background the Hon ble Judge went
through the record of the case and decided the
appeal. The Supreme Court observed that, it
must be remembered by every Advocate that he
owes a duty to the Court, particularly in a
criminal case involving the liberty of the
citizens, and even if he has not been paid his
fees or expenses, he must argue the case and 17
assist the Court in reaching the correct
decision. The Court also observed that, one
thing was clear that howsoever diligent the
learned Judge might have been and however
careful and anxious to protect the interests of
the appellants, his effort could not take the
place of an argument by an Advocate appearing
on behalf of the appellants. Therefore, the
Court felt that the Judge should have appointed
an amicus curiae and then proceed to dispose of
the appeal. Therefore, the appeal was again
remanded back to the High Court. The Judgment
in Shyam Deo Pandey s case does not appear to
have been noticed by the Supreme Court while
deciding this case. The provisions of Section
386, particularly the expression if he
appears too have not been considered while
deciding that appeal.
11. While deciding the appeal, I had
considered the question as to whether an 18
amicus curiae could be appointed and had ruled
out appointment of an amicus curiae because it
would have entailed adjourning the hearing.
Again if the requirement of law was that
appellant had to be heard, the question of the
appellant being represented by a lawyer of his
choice would also arise and it could always be
argued that hearing an amicus curiae was just a
farcical compliance to the requirement of
hearing the appellant.
12. In this context, the question as to
what is a binding precedent and how law evolves
by judicial precedent arises. In the absence of
statute law, common law evolved from precedent
to precedent. But when there is a statute, the
role of judicial precedent would be only to
interpret and explain the provisions of the
relevant statute, should there be any
ambiguity, or to elucidate the manner in which
the statute is to be applied to a fact 19
situation. In this case, Section 386 of the
Code does not present any difficulty as to
interpretation. The words used in the Section
are very clear. If the Legislature wanted that
appellant must be heard, the Legislature would
not have used the expression, if he appears .
The object was very clear that, whether the
parties or their Advocates appear or not, an
Appellate Court would be obliged to decide the
appeal after perusing the record. This had been
confirmed by the Supreme Court in its Judgment
in Shyam Deo Pandey s case. The doctrine of
precedent itself implies that Judgments given
earlier would bind successive Courts.
Therefore, ordinarily, the Judgment in Shyam
Deo Pandey s case would bind successive
Benches, unless it is expressly over-ruled. It
does not appear that at any point of time the
Judgment in Shyam Deo Pandey s case has been
considered and over-ruled. While judicial law
making is a reality, Judges make law when the 20
Legislature leaves a gap, when there is a
vacuum. Nullifying words in a statute can occur
only if they affect the validity of the
legislation or if the statute becomes
unworkable without deleting those words. No
such difficulty is presented by the words, if
he appears . In the light of this, the
necessity of hearing a party who had chosen to
take away the brief from the Lawyer had to be
considered.
13. I may also refer to the Bombay High
Court Appellate Side Rules, 1960. Rule 31 in
Chapter XXVI provides for appointment of
Advocate for undefended accused at Government
cost. The appellant s case does not fall under
this category. Rule 8 about engaging Advocates,
in Chapter XXXII of the Rules reads as under:
8. (1) In Civil Cases, the appointment of an Advocate, shall be deemed to be in force to the extent provided in that behalf by Rule 4 of 21
Order 3 of the Code of Civil Procedure, 1908.
(2) In Criminal Cases, the appointment of an Advocate, shall be deemed to be in force until determined with the leave of the Court by writing signed by the
client or the Advocate, as the case may be and filed in Court or until the client or the Advocate dies, or until all proceedings in the case are ended so far as regards the
client.
(3) For the purposes of sub-rule (2), a case shall be deemed to mean every kind of enquiry, trial or
proceeding before a Criminal Court whether instituted on a police report or otherwise. The following shall be deemed to be proceedings in the
case:-
(i) an application for bail or reduction, enhancement or cancellation of bail in the case.
(ii) an application for transfer of the case from one Court to
another;
(iii) an application for stay of the case pending disposal of a civil proceeding in respect of the same transaction out of which the case arises;
(iv) an application for suspension, postponement or stay of the execution of the order of sentence passed in this case;
22
(v) an application for the return, restoration or restitution of the property as per the order of disposal of property passed in the case;
(vi) an application for leave to appeal against an order of acquittal passed in the case;
(vii) any appeal or application for revision against any order or sentence passed in the case;
(viii) a reference arising out of the case;
(ix) an application for review of an order or sentence passed in the case or in an appeal, reference or revision arising out of the case;
(x) an application for making concurrent sentences awarded in the case or in an appeal, reference, revision or review arising out of the case;
(xi) an application relating to or incidental to or arising in or out of any appeal, reference, revision or review arising in or out of the case (including an application for leave to appeal to the Supreme Court);
(xii) any application or act for obtaining copies of documents or for the return of articles or documents produced or filed in the case or in any of the proceedings mentioned herebefore;
23
(xiii) any application or act for obtaining the withdrawal or the refund or payment of or out of the moneys paid or deposited in the Court in connection with the case or any of the proceedings mentioned hereinbefore (including moneys paid or deposited for covering the costs of the preparation, printing and transmission of the transcript record of appeal to the Supreme Court);
(xiv) any application for the refund of or out of the moneys paid or recovered as fine or for the
return, restitution or restoration of the property forfeited or confiscated in the case or in any appeal,
reference, revision or review arising out of the case as per final orders passed in that behalf;
(xv) any application for expunging remarks or observations on the record of or made in the judgment in the case or any appeal, reference, revision or review arising out of the cases, and
(xvi) any application or proceeding for sanctioning prosecution under Chapter XXXV of the Code of Criminal Procedure, 1898 (now Chapter XXVI of the Code of Criminal Procedure, 1973) or any appeal or revision arising from and out of any order passed in such an application or proceedings:
Provided that where the venue
of the case or the proceedings is shifted from one Court (Subordinate 24
or otherwise) to another, the Advocate filing a Vakalatnama referred to in sub-rules (1) and (2) above shall not be bound to appear, act or plead in the latter Court unless he files a memorandum stating that he has instructions from his client to appear, act and/or plead in that Court.
(4) When an Advocate who has filed a Vakalatnama for a party
wishes to withdraw his appearance he shall serve a written notice of his intention to do so on his client at least seven days in advance of the case coming up for hearing before the Court. Leave of the Court to withdraw appearance may also be applied for if the client has instructed the Advocate to that effect.
The Advocate shall file a
note in writing requesting the Court for permission to withdraw appearance and shall also file along with the note the letter of the client instructing him to withdraw his appearance or a copy of the intimation given to the client as above together with its written acknowledgement by the client. The Court if it is satisfied that no inconvenience is likely to be caused to the Court or the client may permit the Advocate to withdraw his appearance and while permitting the Advocate to do so may also impose such terms and conditions as it may deem proper either in public interest or in the interest of the parties. 25
(5) A party who wishes to discharge the Advocate engaged by him may apply to the Court for an order of discharge by following a similar procedure and the Court if it is satisfied may pass order discharging the Advocate and while doing so
impose such terms and conditions as it may deem proper.
It is thus clear that an Advocate who has filed
appearance in the Court cannot be discharged
and his appearance is in force until determined
with the leave of the Court. Thus, a client and
his Advocate cannot themselves decide to stop
the Advocate from appearing. Therefore I had
proceeded to hear the appeal. With this
explanatory prologue I now proceed to deal with
the arguments advanced when the appeal was re-
heard.
14. The facts which are material for
deciding this appeal are as under:
One Rajesh Baburao Thakur was a worker
of Center for Indian Trade Union and was a 26
member of Communist Party of India (Marxist).
In April, 1992, he had taken up cause of one
Pushpalata Pandharinath Thakur, allegedly
kidnapped by the present appellants. He had
caused a Morcha to be taken out, which led to
arrest of the appellants. The appellants were
prosecuted but had been eventually acquitted in
that case; possibly because of some compromise
worked out between the victim, her family and
the appellants.
15. On 23-5-l993 one Pandurang got married
at Multi Purpose Hall of Jawaharlal Nehru Port
Trust. Rajesh Thakur attended the said
marriage. The marriage and reception ceremonies
were over at about 5:00 p.m.. Rajesh Thakur was
chit-chatting with his friend Ramesh Patil. Two
appellants along with the third accused
Kamlakar Bhoir charged at Rajesh and inflicted
blows on his shoulder, chest and side of
abdomen. The third accused Kamlakar had already 27
left the place. The accused persons ran away in
a rickshaw. The victim Rajesh was taken to
hospital where he was given necessary
treatment. On the report made by the victim, an
offence was registered and investigation
commenced.
16. In course of the investigation, police
performed panchnama of the spot and seized some
incriminating articles from the spot. The
accused persons were arrested and at the
instance of the appellants the weapons used in
the commission of the offence were seized.
Incriminating articles were sent to the
Forensic Science Laboratory, which reported
that the blood stains on the weapons as well as
the blood stains on the spot and those on the
victim s clothes were of the blood group of
victim. On completion of the investigation, the
appellants, along with Kamlakar Bhoir, were
charge-sheeted. Upon commitment of the case by 28
the learned Judicial Magistrate, First Class,
Uran, the case came up before the learned
Additional Sessions Judge, Raigad at Alibag.
17. Since the appellants and the third
accused Kamlakar pleaded not guilty to the
charges of the offences punishable under
Sections 307 and 392 r/w Section 34 of the IPC,
they were put on trial, at which the
prosecution examined as many as nine witnesses
in order to prove the guilt of the appellants.
After considering the prosecution evidence in
the light of defence of false implication on
account of previous enmity, the learned
Additional Sessions Judge acquitted the
appellants and the third accused for the
offence under Section 392 r/w Section 34 of the
IPC and also acquitted the third accused
Kamlakar for the offence punishable under
section 307 r/w 34 of the IPC. He convicted and
sentenced the appellants for the offence 29
punishable under Section 307 r/w Section 34 of
the IPC as mentioned earlier. Aggrieved thereby
the appellants have preferred this appeal.
15. Before the appeal could be re-heard,
it was reported that appellant No.1 Kishor
Kamlakar Patil has expired on 28-2-2000. The
proceedings in so far as they relate to said
Kishor Kamlakar Patil therefore abate.
16. I have heard the learned counsel for
the appellant, the learned APP for the State
and have again perused the entire record with
the help of both the learned counsel.
17. PW-1 was a Revenue Inspector who had
been examined to prove the sketch of the spot
drawn by him at the instance of the police.
This sketch is at Exhibit-15. PW-2 Rajesh
Thakur is the victim himself, who was injured
in the assault by the two appellants. PW-3 30
Ramesh Patil was with the victim at the time of
the incident and had witnessed the entire
incident. PW-6 Mahadeo was present at the spot
and had seen the appellants leaving the spot
after incident. PW-4 Ramesh Thakur was a panch
at the panchnama of spot. PW-5 Vijay Gajanan
Patil, who was a panch at the panchnama of
seizure of articles recovered at the instance
of the appellants, refused to support the
prosecution, and he turned hostile. PW-7 is the
Investigating Officer, Police Inspector Patil.
PW-8 Hanumant is the driver of the rickshaw
which was allegedly forcibly taken away by the
appellants after incident. He too turned
hostile. PW-9 is Dr. Sunita Arole who had
treated the victim after his admission at Sion
Hospital.
18. PW-9 Dr. Sunita had stated that she
treated the victim and found that the victim
had suffered the following injuries: 31
(i) incise would over epigastrium 2cm x 1 cm subcutaneous deep.
(ii) incise wound over right hypochondrium 2cm x 1 cm (depth not probed)
(iii) incise wound over right 7th rib 2 cm x 1 cm subcutaneous deep.
(iv) incise wound over right shoulder 2cm x 1 cm subcutaneous deep.
(v) incise wound over arm, middle 1/3 exterior aspect 2cm x 1 cm.
(vi) incise wound over left anterior axillary fold 2 cm x 1 cm subcutaneous deep.
She found that entry of air was decreased on
account of his injuries. There was about 300 CC
of blood in the chest cavity. The witness
stated that the injuries were grievous and
could have led to death of the victim. Cross-
examination of this witness shows that the
witness had failed to mention the measure of
dimensions of the injuries, which she clarified
to be centimeters. This is not a very serious
lacuna, though ideally Medical Officer should 32
have mentioned that the dimensions were in
centimeters. There is nothing else in the
cross-examination which could reduce the
veracity of the evidence tendered by the
witness. It is also worth mentioning that it
was suggested to the victim himself who was
examined as P.W.2 that he had been assaulted by
someone else and because of disputes in the
union, he named the appellants as the
assailants. Thus that suggestion shows that it
has not been disputed at the trial or even at
the hearing of the appeal that the victim had
been seriously injured.
19. Both PW-2 Rajesh and PW-3 Ramesh, the
victim and eye witness, categorically named the
two appellants as the authors of the injuries
inflicted on Rajesh. They state that appellants
Kishor and Abhay inflicted blows by means of
Gupti and knife respectively on the shoulder,
chest and side of abdomen. The only material 33
discrepancy in the evidence of these two
witnesses pointed out by the learned counsel
for the appellants is as regards the clothes
which the appellants were wearing. PW-2, the
victim Rajesh stated that the appellants were
wearing shirts. PW-3 Ramesh stated that they
were wearing banians. As rightly submitted by
the learned APP, this is not a serious
discrepancy warranting disbelief in the victim
and his friend. He submitted that the victim
was unlikely to name a wrong person as
perpetrator of assault on him letting off the
real culprit.
20. The learned counsel for the appellants
submitted that there was no reason for the
appellants to attack the victim. It was
deceased Kishor who was (wrongly) alleged to
have kidnapped a girl. Therefore, appellant
Abhay could not be said to have any grudge. In
the backdrop of the fact that appellant Abhay 34
had stated in his statement under Section 313
of Code of Criminal Procedure that there was
political rivalry between the victim and the
appellants, as also the fact that it was
suggested to the victim that the appellants
were involved in the case of kidnapping one
Pushpalata because of the victim s speech, it
would be difficult to infer that the appellants
had really no grievance about the victim and,
therefore, no motive to launch such assault. In
view of this, the evidence of PW-2 Rajesh, duly
corroborated by PW-3 Ramesh, would have to be
accepted, as has been rightly done by the
learned Additional Sessions Judge.
21. As rightly submitted by the learned
counsel for the appellants, the evidence about
the discovery of weapons at the instance of the
appellants is deficient. PW-5 Vijay, who was
panch at seizure, has turned hostile. The
Investigating Officer PW-7, Police Inspector 35
Patil has stated about the seizure in an
extremely casual manner. In his examination-in-
chief he stated that on 27-5-1993 he attached a
Gupti at the instance of accused Kishor Patil
under memorandum of discovery panchnama at
Exhibits-25 and 25-A and he also attached a
knife at the instance of accused Abhay under
memorandum of discovery panchnama vide
Exhibits-24 and 24-A. Though the learned trial
Judge in para 22 of the judgment has observed
that the memoranda of discovery have been
proved by the prosecution through the
Investigating Officer, and that solitary
statement of the Investigating Officer, a
retired Police Inspector, can be taken as
sufficient for proving the alleged recovery of
weapons under section 27 of the Evidence Act,
this conclusion has to be disapproved. The
learned Judge should have seen that it was
necessary for the Investigating Officer to
depose as to how the accused came to disclose 36
about concealment of weapon used in the
commission of crime and how weapons came to be
discovered at the instance of the appellants.
Summary statement of the witness in para 2 of
his deposition hardly satisfies the requirement
of a discovery under section 27 of the Evidence
Act and the learned Judge should have,
therefore, discarded this part of the evidence.
22. The learned APP submits that the
exclusion of discovery of the weapons from
consideration would not affect the merits,
since in this case there is an eye witness
account of the incident given by two witnesses
who would have no reason to name wrong persons
as the perpetrators of the crime. Therefore,
in the face of the evidence of PW-2 Rajesh and
PW-3 Ramesh, which has not been impeached in
spite of vigorous cross-examination, it cannot
be said that the learned Judge erred in
concluding that the appellants were the authors 37
of the injuries inflicted on the victim.
23. The learned counsel for the appellants
first submitted that considering the nature of
the injuries inflicted, the offence could not
at all be one punishable under Section 307 of
the IPC. He submitted that if at all appellant
Abhay was to be held as the author of any
injuries on the victim, the offence could be
one punishable under Section 324 of the IPC or
at worst one under Section 308 of the IPC. He
further submitted that deceased appellant
Kishor is alleged to have used a sword stick
and appellant Abhay is alleged to have used a
knife. PW-2 Rajesh had stated in his cross that
he received two blows of sword stick one by
the side of the abdomen and other on the left
shoulder. He received three blows by knife
one on the abdomen, second on the right side of
the abdomen and the third on the right arm. He
submitted that there is nothing to show that 38
the injuries were caused by knife. He submitted
that appellant Abhay could not therefore be
attributed requisite intention or knowledge for
attracting the charge of attempting to commit
murder.
24. The learned APP submitted, first, that
in an offence committed in furtherance of
common intention, it would be impermissible to
find out as to who was the author of which blow
or to attribute lethal blows to the appellant
who is no more. Secondly, though PW-9 Dr. Arole
had stated in her cross-examination that she
could not state as to which injury was caused
by which weapon, since both the weapons were
sharp-edged weapons, it could not be said that
the injuries attributed to the appellant could
not have been caused by a knife. Thirdly, he
submitted that more serious injuries were
inflicted by the appellant. He pointed out that
two injuries on the abdomen over the 39
epigastrium and right hypochondrium could be
those caused by appellant Abhay. I have
examined these contentions. The injury on
abdomen attributed to Kishor could be one
caused over the right 7th rib. Even if
authorship of one injury is exchanged for the
other, the gravity could be gauged by the fact
that there was linear tear on right lower pole
in the area where peritoneal haematoma was
noticed which indicates injury to lung. There
was jejunal perforation and tear of right lobe
of liver. PW-9 Dr. Arole categorically stated
that the injury was such that death could have
resulted. In view of this, it cannot be said
that appellant Abhay was not the author of any
life threatening injury.
25. The learned APP also rightly submitted
that there was no question of offence
punishable under only Section 324 of the IPC
being made out since the victim was in hospital 40
for upwards of 20 days. In any case,
considering the nature of the injury inflicted,
it cannot be said that the intention
attributable to the appellant was only to cause
a simple or grievous hurt.
26. The learned counsel for the appellants
next submitted that even so, intention or
knowledge attributable could not be that of
causing death and therefore offence could at
worst be one punishable under Section 308 of
the IPC and not under Section 307 of the IPC.
This is indeed an ingenuous argument and as
observed by the Hon ble Supreme Court in Khaili
and others v. State of Uttar Pradesh (supra),
illustrative of the fact that however diligent
a Judge might be, or however careful and
anxious to protect the interest of appellant,
his effort cannot take the place of argument by
an Advocate.
41
27. Section 308 of the IPC corresponds in
cases where victim survives to Section 304 of
the IPC which punishes homicide. In order to
comprehend the arguments advanced by the
learned counsel, it may be useful to reproduce
here Sections 299, 300, 307 and 308 of the IPC
as under:
299. Culpable homicide.- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly.- If it is done with
the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly.- If it is done with the intention of causing bodily injury to 42
any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
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 extent 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.
Attempts by life convicts.- [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]
308. Attempt to commit culpable homicide.- Whoever does any act with such intention or knowledge and under such circumstances that, if he by 43
that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
28. Culpable homicide is murder if the act
is done with the intention of causing death or
intention or knowledge of causing such bodily
injury which is sufficient in ordinary course
of nature to cause death. Clauses Secondly and
Fourthly in Section 300 may not be relevant for
the present case. Thus culpable homicide is not
murder if the requisite intention to cause
death or knowledge that injury intended would
in ordinary course of nature cause death is
missing. It then amounts to culpable homicide.
Additionally, culpable homicide is not murder
if the case falls under one of the exceptions
under Section 300 and it is not the appellant s 44
case that his case falls under any exception.
29. Considering the area of the body over
which the injuries were inflicted and the
weapon which was used, as also the result
produced as noticed by PW-9 Dr. Arole, it would
not be possible to attribute to the appellant
any intention other than that of causing death.
Therefore, the learned trial Judge must be held
to have rightly convicted the appellant of the
offence punishable under Section 307 of the IPC
which attracts punishment of imprisonment for
life. Therefore, benefit of provisions of the
Probation of Offenders Act cannot at all be
extended to the appellant, though the Probation
Officer has so recommended.
30. The learned counsel for the appellants
next submitted that the appellant was just a
22-year boy without any previous criminal
history and therefore benefit of the provision 45
of Section 360 of Code of Criminal Procedure be
extended to the appellant. As rightly pointed
out since the Probation of Offenders Act
applies to the State of Maharashtra, there is
no question of invoking the provision of
Section 360 of the Code of Criminal Procedure
in view of Section 19 of the Probation of
Offenders Act. In any case, if the offence is
one punishable with imprisonment for life,
there could be no question of invoking
provision of Section 360 of the Code of
Criminal Procedure. In none of the cases, on
which the learned counsel for the appellants
relied, has benefit of probation been given to
a person convicted for offence punishable with
imprisonment for life.
31. The learned counsel for the appellants
next submitted that considering the fact that
the appellant was just 22 years and had no
previous criminal history when the offence was 46
committed in May, 1993, that is 18 years ago,
and has been living in the shadow of conviction
for the last 14 years and has been in jail for
about three months in all, he may not be sent
back to the jail now and the substantive
sentence could be reduced by increasing the
fine. The learned APP relied on a Judgment of a
Division Bench of this Court in Arun Balkrishna
Nirmal & Ors. v. State of Maharashtra, reported
in 2006 All MR (Cri.) 516, coincidentally
authored by me, where for a similar offence
sentence of RI for five years was held proper
when the offenders were 22 and 24 years old.
The observations in paras 11 and 12 of the
Judgment may be usefully reproduced as under:
11. This takes us to the question of sentence, which has been agitated by all the parties in the three proceedings. True it is, that the victim had suffered a brutal attack with as many as 34 injuries being inflicted upon him from which only providence seems to have saved him. It does not, however, follow that the accused must be sentenced to 47
suffer the maximum sentence prescribed under Section 307 of the Penal Code, as urged by Shri Mohta, the learned counsel for the revision- petitioner, and supported by the learned Additional Public Prosecutor for the State. The learned Additional Sessions Judge had observed at page 231 of his judgment that at the
relevant time the convicts were just 18 to 20 years in age, when the
record shows that they were 22, 23 and 24 years old respectively at the relevant time. Though the learned Additional Sessions Judge may thus be seen to have erred on the side of leniency, because of incorrect comprehension of age of the convicts at the time of commission of offence, it does not follow that the learned Trial Judge was too far off the mark. If not 18 to 20 years old, the accused were 22 to 24 years old youngsters without any criminal antecedents.
12. The contention of the learned counsel for the convicts that the victim himself was a convict in a murder case is irrelevant and cannot be a mitigating circumstance. Considering the principle of proportionality, we find that the learned Trial Judge had rightly exercised his discretion in the matter of sentence by inflicting sentence of rigorous imprisonment for five years on each of the convicts after considering the magnitude of attack, antecedents of the accused, etc. We are also conscious of the fact that the convicts have been 48
living under the shadow of imprisonment, since the incident took place 19 years ago. In view of this we do not see any reason to interfere in the discretion properly exercised by the learned Trial Judge.
32. I had carefully considered the
possibility of a reduced sentence even while
dismissing the appeal on 15-11-2010. Since a
reduced sentence would not obviate the need for
the appellant to revisit the jail and since
short term sentences, in such serious crime,
are unlikely to have appropriate correctional
effect on the criminal and would send wrong
signals to the society at large, it would be
wrong to reduce the sentence. The appeal is,
therefore, dismissed.
33. Appellant Abhay Parshuram Bhagat shall
surrender to his bail and if he does not
surrender, within a period of four weeks, the
learned Sessions Judge, Alibag, shall take
necessary steps to take him in custody to serve 49
the sentence.
(R.C. CHAVAN, J.)
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