Karnataka High Court
State By C.P.I., Dandeli, Uttara ... vs Ramu Thalapa Kamble And Others on 14 March, 2000
Equivalent citations: ILR2000KAR3263, 2000(3)KARLJ510
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT M.F. Saldanha, J.
1. The State of Karnataka has assailed the correctness of the order passed by the Trial Court in S.C. No. 30 of 1994, dated 16-3-1995. Three accused persons were charged with having assaulted the deceased Ningappa on 25-1-1994 at 4.00 p.m. at Kajumala Gangoda of Joida Taluk and having caused him injuries as a result of which he died in the hospital after five days. The accused 1 is the father and accused 2 and 3 are the sons and it is also relevant to mention that the deceased is the step-brother of accused 1. We do not need to recount in detail the evidence because P.Ws. 1 and 2 are the eye-witnesses and they have in the course of the trial deposed to the effect that pursuant to some property dispute, a verbal altercation took place and that the accused 1 picked up a piece of firewood that was lying there and assaulted on the head of the deceased. They have also alleged that accused 2 and 3 assaulted the deceased with their hands and that they were inciting accused 1. The deceased collapsed on the spot and he was subsequently taken to the hospital for treatment. The prosecution has examined the doctor P.W. 7 who has in terms opined that the deceased had sustained fracture of the skull and the post-mortem report which is deposed to by P.W. 8 indicates that there was damage to the brain and that it is because of these injuries that the deceased died. The learned Trial Judge has accepted the evidence and has recorded the conclusion that the injuries sustained by the deceased were at the instance of the accused. He has also recorded the finding that the evidence conclusively establishes that it was accused 1 who used the piece of firewood and that it was the blows inflicted by him that caused the head injuries. The Trial Court however, for a variety of reasons including the fact that the incident seems to have been sporadic, that there is no pre-meditation, that the parties are all villagers and farmers with no criminal background held that on the material before the Court, the accused could only be held liable for the offence punishable under Section 324 read with Section 34 of the IPC and the Court further recorded the finding that the period undergone by the accused in custody would be sufficient sentence. The record indicates that the accused had undergone approximately 3 months and 17 days in custody. The accused having not appealed against their conviction and sentence, the State has assailed the correctness of the verdict of the Trial Court, insofar as where a death has occurred the finding that the accused could only be convicted of the offence punishable under Section 324 of the IPC as also the adequacy of the sentence have both been called into question.
2. We have heard the learned Additional State Public Prosecutor as also the learned Advocate who represents the respondents-accused and we have also done a thorough review of the record before us. We have not confined ourselves to only the two limited aspects that are raised by the State but we have also, as of necessity had to review the conclusions recorded by the Trial Court on the basic question as to whether the evidence establishes the charges. We do find that the evidence is consistent, that the evidence is reliable and that the evidence is trustworthy. The Trial Court has carefully considered the different heads of evidence and has held that the medical evidence corroborates the evidence of the eye-witnesses and has therefore, concluded that the injuries were inflicted at the hands of the accused persons. The Trial Court has also held that the accused were acting in furtherance of their common intention. As far as this finding is concerned, we need to observe that even though there is a reference to the effect that accused 2 and 3 had assaulted the deceased with their hands, we see no inter- connection between the action of accused 1 in suddenly picking up a piece of firewood and assaulting the deceased with it and the generality of objective that existed earlier. Under these circumstances, it is necessary to draw a distinction between the individual acts of accused 1 and the limited acts of accused 2 and 3 which had taken place earlier. In this view of the matter, we uphold the conviction of accused 2 and 3 for the offence punishable under Section 324 read with Section 34 of the IPC as also the verdict of the Trial Court that the period undergone by them in custody is adequate sentence for these offences.
3. However, the Trial Court is clearly in error in having overlooked the medical evidence in this case which very clearly establishes that the blows inflicted by accused 1 on the deceased resulted in fractures of the skull. The medical evidence and the post-mortem report also conclusively establish that the fractures had caused internal damage to the brain and that it was these injuries that resulted in the death of the deceased even though it was after five days. We have carefully ascertained as to whether there were any other circumstances that may have intervened and we find from the record that the medical evidence is very clear that it was the injuries which caused the death of the deceased and nothing else. The question therefore arises as to what would be the liability of the accused 1. It was contended on behalf of accused 1 that the incident was sudden, that there was no preparation or pre-meditation, that it was in the heat of the moment and an argument was also advanced that from the description in the FIR and the evidence, that it further appears that it was the deceased who started the altercation. On a scrutiny of all these factors, the manner in which the incident took place, the type of weapon used, the injuries that have occurred and above all, the circumstances under which these injuries were inflicted, in our considered view, the accused 1 would be liable for the offence punishable under Section 326 of the IPC.
4. The learned Trial Judge while considering the question of sentence has gone into a rather elaborate exposition of the principles of criminal jurisprudence relating to the theories of punishment. We reproduce paragraph 52 of the judgment which is the relevant paragraph because it would be necessary for us to say something about it.
"52. Imposition of sentence in a criminal case is probably the most important, difficult and responsible function of a Trial Judge. It demands of him the best that he has in his vision, knowledge and insight as a jurist and as a human being. Basically, the law of evidence and procedure is geared up to satisfy the needs of sentencing policy that looks more to the crime than to the criminal. If the crime is pathological, the sentence must be therapeutic. Having a glimpse at the World History, the celebrated King Hamurabi of Babylon was the first king to promulgate the written laws. The basic concept of punishment under his regime was 'tooth for tooth' and 'nail for nail'. In other words, it was concluded and practised that prison was the only answer. From the time of Britishers entry into India, they gave Anglo-Saxon principles of punishment which envisage four kinds of punishments. They are (1) deterrent theory; (2) retributory theory; (3) rehabilitative theory and (4) reformatory theory. The same principles are being followed even today by the Courts in India while awarding sentences on a convict. But, the recent trend of the precedent law is more or less based on the principle that the crime is pathological and sentence is therapeutic. The recent trend of the precedent law, also shows that the Courts of law lean in favour of passing a judgment looking at the criminal and the nature of crime committed and make an endeavour to impose punishment which is more or less based on reformatory and rehabilitative in character. A sentencing Judge should bear in mind that if an excessive sentence is imposed on a convict, there is likelihood of the convict turning himself into a hardened criminal in the Society. If a lesser or no sentence is imposed on a convict keeping in mind the rehabilitatory or reformatory theory of punishment, there is likelihood of increase of crimes in the society and there is likelihood of people losing confidence in this system of criminal administration of justice. So, the Trial Judge, while imposing a sentence, should strike the balance using his knowledge, wisdom and insight as a human being and as a jurist".
5. Having gone into an elaborate exposition of the theories of punishment and even having made references to the various important aspects that are of relevance in this regard, it would have been very necessary for the Trial Court to have taken note of the basic principle that all Courts and Judicial Officers are bound by the provisions of law, the interpretation of the sections and more importantly that even where judicial discretion is exercised, that there are very well-defined parameters within which the Courts will have to function. While it is equally correct that the punishment has to bear a just nexus to the type of offence that has been established against the accused; it is also of extreme importance that insofar as if the discretion is allowed to go overboard or if the sympathy factor is allowed to get out of control, it results in a very serious miscarriage of justice. Where a serious offence has been established, if a hopelessly inadequate sentence is awarded by the Court, it would be a perversion of the law and our High Court has earlier deprecated such a practice by even observing that where such extra light punishments which have been categorised as "flea-bite sentences" are awarded, that instead of furthering the cause of justice that they thwart the cause of justice because where an accused person who is legitimately required to be punished seriously is let off with a hopelessly low sentence or no punishment, it would encourage the commission of such offences and a confidence that the offender can virtually get away. These are well-defined principles which can never be overlooked by a Criminal Court. It is equally important that where serious offences such as the one under Section 302 of the IPC are the subject-matter of the charge and where the cases are dealt with by Senior Judicial Officers such as the present one, that instances of the present type should never be allowed to happen. It is because of what has happened in this case that we are required to restate the guidelines that we have briefly done in this judgment and we would like a copy of the judgment to be circulated by the Registrar General to all the Judges in the State dealing with criminal cases. A copy of the judgment shall be kept in the file of the officer concerned.
6. While on the question of sentence, the learned Advocate who represents the accused 1 points out to us that he is an agriculturist of very modest means and that he has no criminal background. He also brought it to our notice that he is now around 60 years of age and a strong submission was canvassed that he should not be re-confined to prison. In this regard, once again we need to observe that this is a case in which even though the accused was charged with an offence punishable under Section 302 of the IPC and even assuming that something was argued on behalf of accused 2 and 3, we find that strangely enough within hardly 3 months and 17 days of their arrest, that they were released on bail. This is a factor that has worked heavily against accused 1 and we need to restate that under normal circumstances, he ought not to have been released on bail at all until the conclusion of the trial having regard to the nature of the evidence that was on record, even if one were to confine the consideration to the FIR and the medical evidence. Accused 1 in that event would certainly have undergone some reasonable period in custody and in that event it was perhaps even open for a submission on his behalf that if the Court convicted him of the lesser charge that the sentence be reduced to the period already undergone. Unfortunately, the premature release of accused 1 on bail which was wrong in the first instance has now worked to his detriment. We would once again need to emphasize the fact that even at the pre-trial stage as it is the bounden duty of the Court before which an application is made not to be led away by any extraneous factors but to ensure that the well-defined principles of law are adhered to. It is necessary that a careful and correct assessment be done of the charge and the material that is available even at that point of time in support of that charge and where there is prime facie evidence to indicate the commission of serious non-bailable offence, the Courts should be extremely slow in granting bail. We need to illustrate the consequences of such premature and liberal bail orders particularly with regard to what has happened in the present case and we also restate that it has been our experience while hearing several criminal appeals that a similar situation has arisen which has worked to the detriment of the accused at a later stage. We have taken into consideration everything that has been pointed out by the learned Advocates on both sides with regard to the question of sentence, age of the accused and the fact that a long time has elapsed since the date when the offence was committed and the present point of time are special factors that have impelled us to make an exception even with regard to the quantum of sentence under Section 326 of the IPC. We have imposed a reasonable fine on accused 1 in order to mitigate the quantum of sentence he would otherwise have received having regard to the gravity of the offence of which he is held guilty. In our considered view, a sentence of two years rigorous imprisonment and a fine of Rs. 2,000/- would meet the ends of justice.
7. In the result, the appeal partially succeeds. The conviction and sentence recorded against accused 2 and 3 by the Trial Court is confirmed and the same is set aside as far as accused 1 is concerned. Accused 1 is convicted of the offence punishable under Section 326 of the IPC and it is directed that he shall undergo rigorous imprisonment for a period of two years and pay a fine of Rs. 2,000/-. No in default sentence is awarded. Accused 1 is granted twelve weeks time to deposit the fine amount in the Trial Court failing which, the Trial Court to recover the same from him. Accused 1 shall be entitled to set off for the period undergone by him in custody. The bail bonds of the accused are cancelled and the Trial Court to give effect to the final order passed by this Court. The appeal partially succeeds to this extent and stands disposed of.
The Registrar General to note the earlier directions mentioned at the end of paragraph 5 and circulate the copy of the judgment to all the Judges in the State dealing with criminal cases and keep a copy in the file of the officer concerned.