2010 ALL MR (Cri) 3384
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.P. BHANGALE, J.
Sitaram S/O. Pandurang Ambildhoke & Ors.Vs.State Of Maharashtra
Criminal Appeal No.621 of 2008
16th September, 2010
Petitioner Counsel: Shri. S. H. QUAZI
Respondent Counsel: Smt. A. R. TAIWADE
Penal Code (1860), S.304, Part-II - Culpable homicide not amounting to murder - Sentence - Accused persons found guilty of offence under S.304, Part-II for dragging deceased by putting noose around his neck and thereby causing his death - In view of fact that domestic quarrel had led to unfortunate culpable homicide not amounting to murder and accused persons have undergone fairly sizable portion of substantive sentence of imprisonment without any adverse report - Sentence of ten years R.I. is reduced to five years for each of the appellant. (Para 7)
JUDGMENT :- The appeal is directed against judgment and order dated 04/7/2008 in Sessions Trial No.81/2007 passed by learned Sessions Judge, Bhandara convicting the appellants for offence punishable under Section 304, Part-II of the Indian Penal Code and sentencing each appellant to suffer rigorous imprisonment for ten years and fine in the sum of Rs.500/-, in default to undergo imprisonment for six months.
2. The prosecution case in brief is; Sindhubai PW-1 lodged report (Exh.36) at Andhalgaon Police Station about the incident which occurred on 14/8/2007 when Shriram (her son-in-law) was pulled by putting noose around his neck by his father Sitaram; while Jairam (other son of Sitaram) was felling down Shriram; while Shriram was also pulled & pushed by Saya (daughter of Sitaram). When first informant tried to separate them, she was pushed away saying that she is root cause of ruination. The trio had put a noose of rope around Shriram's neck and dragged him on the road. In the result, Shriram died. Thereafter, crime was reported under F.I.R. No.57/07 for the offence punishable under section 302 read with Section 34 of the Indian Penal Code. The investigation followed. P.W.9 Shri. B. K. Madavi, A.P.I. Visited spot and drew spot panchanama in presence of panchas. Inquest panchanama was drawn as per Exh. 47 & dead body was referred for post-mortem. The accused were arrested. The accused No. 1 made a statement and led police & panchas under panchanama for discovery of rope Art.1. Upon completion of investigation, charge-sheet was filed before J.M.F.C., Mohadi and the case was committed to the Court of Sessions, Bhandara on 19/11/2007. The charge was framed on 03/01/2008 to which the accused pleaded not guilty and claimed trial. The prosecution examined nine witnesses including first informant Sindhu (P/W/1) and closed the evidence. The accused had entered in to defence and examined a witness Bandu Rehpade (D.W.1).
3. The trial Court convicted the appellants for offence under Section 304, Part-II read with Section 34 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for ten years each and to pay fine of Rs.500/- payable by each as referred above.
4. The learned Advocate for appellants in support of the appeal contended that evidence of Sindhubai (P.W.1) is exaggerated and ought not to have been believed. Learned Advocate criticized evidence of Vatsalabai (P.W.2) who gave ocular version on the ground that there were omissions in her evidence and improvements made as to particulars of the incident by her, she could have been disbelieved. According to learned Advocate the trial Court ought to have given benefit of doubt to the accused. In the alternative, it is submitted that leniency be shown to appellants and benefit of Section 360 of the Criminal Procedure Code be given to appellants as appellant No.1 is aged more than 67 years and appellants Jairam and Sayabai are married. Appellant Sayabai have small children. To support this submission, learned Advocate for appellants made reference to the ruling in Sanjay Vs. State - 2004 CRI.L.J. 4761 (Delhi) and contended that appellants may be released on probation of good conduct.
5. Learned A.P.P., on the other hand, supported impugned judgment and order and contended that the trial Court had appreciated the direct evidence to arrive at finding of guilt for these appellants and imposed appropriate sentence. According to learned A.P.P. there shall not be any undue sympathy by awarding lesser sentence as the sentence must be sterner in proportion to the crime committed. He made reference to the ruling in State of U.P. Vs. Kishan - 2005(1) Crimes 40 (S.C.) : [2005 ALL MR (Cri) 233 (S.C.)].
"5. 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 etc. Vs. State of Tamil Nadu (AIR 1991 SC 1463)."
7. The trial Court did consider by its detailed judgment the entire evidence on record and the facts and circumstances of the case to find the accused guilty of offence punishable under Section 304, Part-II of the Indian Penal Code read with Section 34 of the Indian Penal Code. I do not find any infirmity in the impugned judgment in this regard. However, the learned trial Judge was pursuaded by concept of a deterrent theory of punishment to observe thus:
"..............The sentence should be such as the people in the society should also feel that in case of commission of such offences, they will have to face the similar consequences....."
This observation was after finding to the effect that the accused persons although not intended they caused the death. (vide para 32) The trial Court appears to have listed mitigating circumstances in para 31 of the impugned judgment. Appellant (accused No.1) Sitaram has old wife to maintain. His son (accused No.2) has his wife to maintain, Sayabai (accused No. 3) has her husband and two young children aged 4 and 5 years. Under these circumstances, balance sheet of aggravating and mitigating circumstances have to be drawn up and mitigating circumstances must be given appropriate weightage in the facts and circumstances of the case. Bearing in mind that domestic quarrel had led to unfortunate culpable homicide not amounting to murder punishable under Section 304, Part-II read with section 34 of the Indian Penal Code. Further bearing in mind that the appellants have underwent fairly sizable portion of substantive sentence of imprisonment without any adverse report against them, I must partly allow the appeal by passing order, thus :
Conviction affirmed. Sentence of rigorous imprisonment is reduced to five years for each of the appellant and rest of the sentence is confirmed as it is. The appeal is partly allowed accordingly.