Bombay High Court
Heeralal Ramlal Parmar And Etc. vs State Of Maharashtra on 16 July, 1997
Equivalent citations: 1998CRILJ574
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT
1. Since both these appeals arise out of the same set of facts, and a common impugned judgment, I am disposing them off together.
2. Vide judgment and order dated 30-7-1990, passed by the Assistant Sessions Judge, Mr. A. I. Cheema, in Sessions Case No. 282 of 1989, the appellants were convicted and sentenced in the manner stated hereinafter :-
(i) Under Section 148, IPC to undergo 3 years RI and a fine of Rs. 2000/- in default to undergo 6 months RI;
(ii) Under Section 307 r/w. 34, IPC to 5 years RI and to pay a fine of Rs. 3000/- in default to suffer RI for 2 years;
(iii) Under N. 147, IPC; No separate (iv) Under S. 352 r/w. 149, IPC; sentence was (v) Under S. 326 r/w. 149, IPC. awarded to them on said counts. Hence, this appeal. 3. Briefly stated the prosecution case runs as under :-
The informant-victim Raju Choudhary, PW 1, has a shop near the Mhasoba square in Pune town, Pune. On 21-4-1989, at about 9.30 a.m. the appellants, co-accused Bittya, Shrikant and Rajendra Mankar, were near the shop. Some girls were passing and Bittya teased one of them. On that Raju, reprimanded him for his act. A scuffle took place and thereafter, both the sides went away.
4. On 22-4-1989, Raju came to his shop. At about 11.30 a.m. along with his friends, Dashrath, Garware, PW 6 and Romi Almodiya, he went to have tea at Ganesh Bhavan Hotel, which was near by. At that time, co-accused Bittya accompanied by the appellants, Rajendra Mankar, Shrikant and Dinesh Dhumal came there. Bittya and Rajendra Mankar were armed with knives. Seeing Bittya and others, Raju, ran and entered the Syong Fish Stall. Bittya and others followed him. Thereafter, at the said place, Bittya and Rajendra Mankar assaulted him with knives. The blow inflicted by the latter, struck him on his chest. When he tried to run away, some of the accused persons inflicted injuries on both sides of his buttocks with sharp instruments. It is also alleged that excepting Bittya and Rajendra Mankar, all others (including appellants) inflicted blows with fists and kicks on him. As a result of the assault, he fell down and thereafter Bittya and others ran away.
Thereafter, the victim Raju got up and started walking towards Dattawadi police chowky, which was situated at a distance of about 100 ft. One Janardhan Vasankar, since dead, met him on the way and took him to the police chowky. Seeing his condition, police immediately sent for a auto-rickshaw, and sent him to Sasoon Hospital. In the meanwhile, some members of the public apprehended the appellants and took them to Dattawadi police chowky.
5. In the meantime, PSI Vijay Deshpande was informed by Head Constable Bendre of Dattawadi police chowky, about an incident taking place in Mhasoba square. On the said information, he came to police chowky where he learnt that the victim Raju had been dispatched to the Sasoon Hospital, Pune. Consequently, he proceeded to the said Hospital and there on the dictation of Raju, recorded an FIR Exhibit 31.
6. Injuries of Raju were examined the same day at 12.25 p.m. by Dr. Vishnu Ughade, PW 5 at the Sasoon Hospital. He found that he had sustained the following two injuries :-
1. Incised wound on anterior axillary live on right shoulder joint measuring 2" x 1/2" x 1/2" bleeding.
2. Incised wound over supra umblical area. 2" x 1/2" x 1/2" bleeding.
In the opinion of Dr. Ughade these injuries were attributable to a sharp object and were grievous in nature. On Dr. Ughade being shown the knife, article No. 3, he said that they were possible by the said knife. During his cross-examination, Dr. Ughade stated that injury No. 2 could have been dangerous, had it not been attended in time.
7. The investigation was conducted in the usual manner by PSI Vijay Deshpande. During the course of it, a knife was discovered on the pointing out of the co-accused Rajendra Mankar. After completing the investigation on 17-7-89, the appellants and others were charge sheeted.
8. The appellants along with Shreekant Pawar were put up for trial before the Assistant Sessions Judge. It may be stated that, co-accused Bittya, Durgesh Bartakke and Rajendra Mankar were not put up for trial along with them. The first two accused were absconding. The third because, he was reported to be dead. The trial Judge charged them on a number of counts. They pleaded not guilty to the said charge, and claimed to be tried.
In the trial Court, apart from tendering some documentary evidence, the prosecution examined as many as 7 witnesses. 5 of them namely the victim Raju Choudhary, Bhau Kamble, Dattatraya Deshmukh, Romi Almoda and Dashrath Gaware, PWs 1, 2, 3, 4 and 6 respectively, were examined as eye-witnesses. In defence, no witness was examined. The trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants along with co-accused Shrikant Pawar, in the manner stated above.
Feeling aggrieved by their aforesaid con-victions and sentences, the appellants have preferred the present appeal.
9. At the very outset, I may mention that this appeal should not have been filed in this Court in view of the provisions contained in Section 374(2), Cr. P.C. which reads thus :-
"(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court, in which a sentence of imprisonment, for more than seven years, has been passed, against him or against any other person convicted at the same trial, may appeal to the High Court."
A perusal of the said provision would make it crystal clear that where trial is held by a Judge other than a Sessions Judge or Additional Sessions Judge and a sentence of seven years or less is awarded, an appeal would not lie to the High Court.
In the instant case, since the trial was held by the Assistant Sessions Judge, and a sentence of not more than seven years was awarded, my first reaction was to dismiss this appeal as not maintainable. But since it has been pending in this Court for nearly 7 years. On equitable considerations, I have refrained from doing so.
It also struck me to send this appeal to the Sessions Court, with an observation that since for no fault of the appellants, it was filed in this Court, it should be treated within limitation and decided on merits. But, I desisted from doing so, because this would entail in the appellants, incurring extra expenditure, in having to engage a counsel in the said Court and would further delay the disposal of this appeal which is already pending since the last 7 years. After all expeditious justice is an integral pan of the fundamental right conferred by Article 21 of the Constitution of India which provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law."
In situations such as the present, the ends of justice are better served if a humane view rather than one which is purely technical is taken.
10. But, I hasten to add that the equitable view which I have taken is on account of the peculiar facts of this case and the larger considerations of justice and I should not be understood to mean that if an conviction is recorded by an Assistant Sessions Judge and an appeal is preferred before this Court the sentence being not more than seven years, this Court would entertain the same. It would not, it should always be borne in mind that an appeal is a creature of the statute and would only lie before the Court, which is competent to hear it under the statute.
11. I have heard Mr. R. S. Chitnis and Mr. M. S. Mohite, holding for Mr. S. R. Chitnis for the appellants and Mr. MIP Galieria, Additional Public Prosecutor for the State of Maharashtra, in both the appeals. I have also perused both the oral and documentary evidence on record and the impugned judgment. In my view, these appeals deserve to be partly allowed.
12. I now propose to examine the impugned judgment on merits. I find that so far as the involvement of the appellants in the incident is concerned, it has been squarely established. I find that the ocular account which comprises of independent witnesses nominates the appellants, in the incident.
12-A. The circumstance that almost in continuation of the incident that the two appellants, were arrested by the members of the public and thereafter, taken to Dattawadi police chowky demonstrates their participation in the instant crime. No plausible explanation, explaining their spot arrest, has been furnished by the appellants.
12-B. Assurance about the participation of the appellants, is also lent by the circumstance that there was a plausible motive to commit the crime. Evidence is that when a day prior to the incident, co-accused Bittya teased a girl in front of the shop of the victim Raju the appellants were accompanying him. This circumstance probabilises the prosecution case that the appellants were friends of Raju and therefore, it is not surprising that the following day, they participated in the incident wherein he was assaulted.
12-C. Another circumstance which clinches involvement of the appellants, in the instant crime, is that in the prompt FIR of the incident which was lodged by the victim, prior to his medical examination, which took place the same day at 12.25 noon, the appellants are named. The importance of a prompt FIR cannot be over-emphasised. It enables the prosecution to escape the stigma of its being the result of confabulations and deliberations.
13. However, I am not inclined to believe the eye-witnesses when they say that the two appellants along with Shrikant and Dinesh inflicted blows with kicks and fists on the victim Raju because, a perusal of the injuries of Raju, which have been reproduced in para 6, of this judgment, would show that he sustained no injuries attributable to blows with kicks and fists. Dr. Ugade, who had medically examined Raju, categorically stated that the two incised wounds which he had suffered were attributable to a sharp object and could have been caused by the knife article No. 3.
14. The learned trial Judge in para 12 of the impugned judgment, has observed that it should have been specifically put to the doctor that he had not seen injuries other than the two incised wounds. I am afraid I cannot agree with him. When Dr. Ugade, categorically stated that he only found two incised wounds, on Raju's person, it means that he found no other injuries.
14A. The next question is as to what are the offences made out against the appellants. It is well-settled that people who conjointly commit criminal acts, may have community of intention up to a certain extent. If one, or some of them exceed the common intention, then all would not be liable. Person/persons exceeding it, would alone be liable for his/their individual act.
15. The question is whether on the facts in the instant case, can it be said that the appellants shared the common intention with the co-accused Bittya and Rajendra Mankar for attempting to commit murder of Raju. The evidence in respect of common intention which the prosecution wants me to accept is :-
(a) the appellants were friends of Raju and the previous morning, when Bittya teased a girl in front of Raju's shop, they were accompanying him;
(b) the appellants along with co-accused Srikant, Dinesh Dhumal Bittya and Mankar, the latter two armed with open knives, chased Raju up to Suyog Fish Stall;
(c) In Suyog Fish Stall, Raju was assaulted by Bittya, Mankar, the appellants, co-accused Srikant and Dinesh Dhumal; and
(d) After assaulting Raju, the appellants along with Srikant, Dinesh Dhumal, Bittya and Mankar ran away.
16. I may straightway mention that I have not accepted circumstance (c) viz. that conjointly, with Mankar, and Bittya, the appellants, Srikant and Dinesh Dhumal assaulted Raju by giving him blows with kicks and fists because no injuries attributable to kicks and fists were found on Raju's person.
17. The question is whether on the basis of circumstances (a), (b) and (d), can it be inferred that the appellants, shared with co-accused Bittya, and Mankar the common intention, for the offence of attempt to commit Raju's murder. My answer is in the negative. The Judicial Committee of the Privy Council in the case of Mahbub Shah v. Emperor has warned that the inference of common intention should not be reached unless it can be necessarily deduced from the facts of a case. In my view, on the basis of circumstances (a), (b) and (d), it would be reasonable to infer that the common intention shared by the two appellants, was to cause grievous hurt to Raju within the meaning of Section 326, IPC. It would be reasonable to infer that when in the background of the immediate motive alleged by the prosecution, the appellants chased the victim Raju, along with Srikant, Dinesh Dhumal, Bittya and Rajendra Mankar, the latter being two armed with naked knives, they knew that at least grievous hurt could be caused to Raju.
18. In my view, the appellants, Bittya and Mankar when they simultaneously assaulted Raju with knives, they exceeded the common intention and formed between themselves, on the spur of the moment, common intention in respect of the offence of an attempt to commit Raju's murder.
19. I am fortified in my view by the observations of the Supreme Court, in the case, Ram Anjore v. State of Uttar Pradesh in the said case, in para 21, it is observed thus :-
"Before we part with this case, we may remark that when the members of the unlawful assembly were armed with lathis and spear the common object of which was to assault Ram Palat and Viswanath, the common object may not be to murder Viswanath, the members of the assembly must have known that at least grievous hurt with a sharp cutting weapon was likely to be caused by any member of the assembly in prosecution of the common object. All the appellants other than Ram Kumar could have been convicted by the High Court under Section 326 read with Section 149 of Penal Code."
20. I am also of the view that conviction of the appellants in respect of the offence punishable under Section 148, IPC, cannot be sustained. The said offence stipulates that a person should either be armed with a deadly weapon or anything which used as a weapon of offence, is likely to cause death. In the instant case, there is no evidence that the appellants were armed with any such weapon. In fact, the evidence is that they were empty-handed.
21. In my view, the learned trial Judge after having convicted the appellants for the offence under Section 307 r/w 34, IPC in respect of an attempt to commit Raju's murder, erred in convicting them for the offence under Section 326 r/w 149, IPC in respect of causing grievous injuries to Raju. The offence under Section 326, IPC, is a minor offence in relation to that under Section 307, IPC and it is a trite that where the Court convicts for a major offence, it should not convict for a minor offence.
22. I find the convictions of the appellants for the offences under Sections 147 and Section 352 r/w. 149, IPC, to be correct in law. I am not entering deeper into this question because the appellants have not been separately sentenced for these offences.
23. The question with which I am left is the quantum of sentence to be imposed on the appellants, for the offence under Section 326 r/w. 34, IPC. From a perusal of statement of the appellants, recorded under Section 313, Cr. P.C. it transpires that the appellant-Heeralal Parmar was aged about 18 1/2 years, at the time of the incident and the appellant-Durgesh Bartakke, was aged about 20 1/2 years, at the said time. It appears that on account of their impressionable age, they participated in the incident. Bearing these facts in mind, as also the circumstances that the incident took place nearly 8 years ago; the appellant did not assault the victim; appellant-Durgesh Bartakke, has been in jail for about 9 weeks and Heeralal Parmar for about 1 week, the ends of justice, in my judgment, would be served if the jail sentence, of the appellants, on the said count is reduced to the period already undergone by them provided each of them pays a fine of Rs. 15,000/- within a period of 6 months, from today, in the trial Court, failing which the defaulting appellant/appellants, as the case may be, would undergo a sentence of 2 years RI. In my view, the fine realised should be paid as compensation to the victim Raju Eknath Choudhari, PW 1.
24. In the result, this appeal stands partly allowed and partly dismissed. I uphold the conviction of the appellants, for offences punishable under Sections 147 and 352 r/w. 149, IPC. I acquit the appellants for the offence under Section 326 r/w. 149, IPC. I also acquit the appellants for offences punishable under Section 148, IPC and, 307 read with 34, IPC and set aside their convictions and sentences on the said counts. In case they have paid the fine, it shall stand refunded to them. However, in place of the offence under Section 307 read with 34, IPC, I convict the appellants for an offence under Section 326 read with 34, IPC, and reduce their jail sentence to the period already undergone by them and direct each one of them to deposit a fine of Rs. 15,000/- (Rupees Fifteen Thousand) within a period of six months from today, in the trial Court, failing which, the defaulting appellant/appellants, as the case may be, would undergo a sentence of two years RI. In case the fine is deposited by the appellants, it shall be paid as compensation to the victim Raju Eknath Choudhari PW 1 and in case he is not alive, to his legal heirs. As soon as the fine is deposited, the trial Court shall inform Raju Eknath Choudhari/his legal heirs, as the case may be, about this compensation. In case the fine is not deposited within the stipulated period, the defaulting appellant/appellants, as the case may be, shall undergo to sentence in default of payment of fine.
It would be open to the trial Court to accept the fine, on production of a certified copy of my judgment, which in case an application is made, shall be issued on an expedited basis.
25. Order accordingly.