Gujarat High Court
Dhansukh Chhotalal Joshi And Ors. vs State Of Gujarat on 26 October, 1989
Equivalent citations: 1990CRILJ2333, (1990)1GLR396
JUDGMENT
R.J. Shah J.
1. This appeal is at the instance of the original accused in Sessions Case No. 71 of 1987, which was on the file of the Additional Sessions Judge, Nadiad.
2. The case of the prosecution, shortly stated, was as under:--
Accused Nos. 1 and 2 are father and mother respectively of accused Nos. 3 and 4. An incident had taken place at about 5.15 p.m. on 3-12-86 at the entrance of Vohravad, Dakore. At that time, the complainant was, after leaving her school, going towards the house. She saw that all the accused had assembled at the corner of the pole. The prosecution had alleged that on seeing the complainant, accused uttered threatening words to her. Prosecution had alleged that accused No. 2 Ansuyaben was beating the complainant with her hands. In the meanwhile, Bhadrasinh, the deceased husband of the complainant, came on the scene riding a cycle for the purpose of going to his house. As soon as deceased Bhadrasinh came near the scene of offence, accused No. 1 started to beat the deceased by inflicting blows with a stick. At that time, accused No. 3, the eldest son of accused No. 1, inflicted a blow with an iron pipe on the head portion of the deceased, as a result of which there was profuse bleeding from the head portion of the deceased and he fell down on the ground. Prosecution had further alleged that accused No. 4 had also inflicted a blow with a stick to the deceased. The case of the prosecution further was that one Shardaben, wife of Lalshanker Pandya, Sumantbhai Tailor, Vikrambhai and Maheshbhai Rami came at the scene of the offence and rescued the complainant and her husband and immediately thereafter the accused ran away from that place. A complaint came to be given in connection with the above offences. Investigation started pursuant to the same and ultimately it resulted in the said Sessions Case.
3. After the deceased was injured, he was shifted to S.S.G. Hospital, Baroda, but during treatment he expired on 14-12-86 at about 12.05 hours.
4. The learned Additional Sessions Judge, Nadiad after framing charge as per Ex. 3, recorded evidence, heard the arguments and passed an order of conviction on 14-3-88 and an order regarding sentence on 18-3-88 in the aforesaid Sessions Case.
5. Under the said order of conviction:
(a) accused No. 1 was found guilty of an offence punishable under Section 304 Part II read with Sections 34, 323, 504, 506(1) of I.P.C.;
(b) Accused No. 2 was found guilty of an offence punishable under Sections 304-Part II read with Sections 34 and 504 and 323 I.P.C.;
(c) Accused No. 3 was found guilty of an offence punishable under Section 304 Part II of I.P.C;
(d) Accused No. 4 was found guilty of an offence punishable under Section 304 Part II read with Sections 34 and 323 of I.P.C.
6. Under the said order of sentence, accused No. 1 has been sentenced to undergo R.I. for five years and to pay a fine of Rs. 3500/-; in default to undergo further R.I. for one year, for an offence punishable under Section 304 Part II read with Section 34 of I.P.C. Accused No. 1 has also been sentenced to undergo R.I. for three months for the offence punishable under Section 323 I.P.C. and to undergo R.I. for three months for an offence punishable under Section 504 of I.P.C. and to undergo R.I. for six months for an offence punishable under Section 506(1) of the I.P.C. All the substantive sentences in the case of accused No. 1 have been ordered to run concurrently.
7. Under the said order of sentence, accused No. 3 has been sentenced to undergo R.I. for five years for an offence punishable under Section 304 Part II of I.P.C.
8. Under the said order of sentence, accused Nos. 2 and 4 who have been convicted as aforesaid, have been directed, instead of sentencing them to any punishment, that each of them be released on his/her entering into a bond of Rs. 5000/- with two solvent sureties to appear and receive sentence when called upon during the period of two years from the date of the order of sentence and in the meantime to keep peace and be of good behaviour. It was further ordered that accused Nos. 2 and 4 should remain under the supervision of the Chief Probation Officer under the Probation of Offenders Act, Nadiad for a period of two years from the date of the said order.
9. The learned Additional Sessions Judge was further pleased to order that out of the fine of Rs. 3500/-, if paid by accused No. 1, Rs. 3000/- be paid as compensation under Section 357(1) of the Criminal Procedure Code to the widow of deceased Bhadrasinh and if the amount of fine was deposited in the court, then payment of compensation to the widow of deceased should be made subject to Sub-section (2) of Section 357 of the Criminal Procedure Code.
10. Being aggrieved by the said order of conviction and sentence, the appellants-orig. accused have come in appeal.
10A. As stated above, accused Nos. 1, 2 and 4 are convicted 'inter alia' of an offence under Section 304-Part II read with Section 34 of I.P.C. It is necessary to note at this stage that the State has not come in appeal against the order of acquittal of the accused for the offence under Section 302 read with Section 34 of I.P.C.
11. Section 34 of the I.P.C. provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. Furthermore, in order to attract Section 34, it is not sufficient to prove that each of the participating culprits had the same intention to commit a certain act. What is the requisite ingredient of Section 34 is that each must share the intention of the other. In a given case, it may be that when some persons start with a pre-arranged plan to commit a minor offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence, but the conduct or other evidence must be such as not to leave any room for doubt in that behalf. When a court wants to fasten vicarious liability, it must satisfy itself as to the prior meeting of the minds of the principal cuplrit and his companions who are sought to be constructively made liable in respect of every act committed by the former.
12. It is, therefore, necessary to scrutinise the evidence led in the case in the light of the aforesaid principles. At the outset, one may notice some facts which emerged from the evidence and which are also not in dispute. All the accused are members of the same family. Accused No. 1 is a teacher by profession. He was aged about 58 years at the time of the incident. There is nothing on the record to show that up to that age, he was involved in any criminal activity. Accused No. 2 is the wife of accused No. 1 and she was aged about 50 years at the time of the incident. Accused Nos. 3 and 4 are the sons of accused Nos. 1 and 2, who were aged about 19 and 17 respectively at the time of the incident. Deceased Bhadrasinh was also a teacher. His wife Shantaben is also a teacher. Both the families, therefore, were living a normal settled life.
13. Complainant Shantaben P.W. 4 ex. 27 has stated in her evidence that the deceased was serving as Principal in the school at Jakhed. In the same school, accused No. 1 was serving as an Assistant Teacher. The complainant has broadly given out the aforesaid version of the prosecution in her evidence. Complainant has deposed 'inter alia' that since about a year prior to the date of the incident, namely, 3-12-86, there was ill-feeling between accused No. 1 and her husband and that they had also quarrelled in the school itself. At that time, the deceased had asked for police protection. She has also deposed that one day prior to the incident, her husband had brought the pay of all the teachers in the said school at home, which pay was distributed on 3-12-86. On a day previous to the incident, the deceased had told her that there was a cut of one day in the pay of accused No. 1. In her cross-examination, the complainant has deposed that the relations between the two families had become strained because there was a dispute regarding seniority in between the deceased and accused No. 1 and that despite the said dispute regarding seniority, the deceased and accused No. 1 had continued to work as teachers in the same school. In the cross-examination of the complainant, the complainant had denied that her deceased husband had given a cut of one day in the pay of accused No. 1 without any justifiable reasons; that she did not know that the accused No. 1 had told the deceased that if he would give the said cut, then accused No. 1 would observe fast; and that it was not true that because accused No. 1 had stated to observe fast as aforesaid, the deceased had become excited and had tried to beat accused No. 1. Taking the best view of the aforesaid evidence of the complainant, it would seem that there was a somewhat long standing dispute regarding seniority in between the deceased and the accused No. 1. It would seem in the aforesaid circumstances that the proximate cause of the incident was because of cut of one day's pay sought to be given by the deceased in the case of accused No. 1. Beyond the aforesaid, there is no other evidence regarding motive on the part of the accused.
14. At this stage, it is necessary to examine the evidence of Dr. Kishor P. Desai P.W. 2 ex. 22, who has carried out postmortem examination on the dead body of the deceased. He had noticed three external injuries on the person of the deceased, one was on a part of the head, second was a scratch on the elbow portion of the right hand; and the third was also a scratch on the rear portion of the thigh. The internal injuries noted by Dr. Kishore Desai were as under:--
( Editor: The vernacular matter printed hereunder has been omitted).
Dr. Desai has opined in his evidence that the aforesaid external injury No. 1 was correlated to all the injuries noticed by him; that all the injuries noticed by him were ante-mortem; and that the death had resulted because of the aforesaid head injury, as a result of which there had been profuse bleeding, Dr. Desai had further deposed in his evidence that all the aforesaid injuries, namely, the external injury No. 1 with the internal injuries noted by him, were sufficient in the ordinary course of nature to cause death. Dr. Desai has also deposed that the same were possible by the pipe which was muddamal Article No. 6. In his cross-examination, Dr. Desai has deposed that external injuries Nos. 2 and 3 were most simple injuries. It appears that an effort was made in the cross-examination of Dr. Desai to show that death was not the result of the aforesaid head injury, but was a result of some negligence or some other cause. Reading the evidence of Dr. Desai as a whole, there is no reason to doubt that the death was the result of the aforesaid head injury. One finds nothing in the cross-examination of Dr. Desai to show that Dr. Desai was entertaining any other opinion regarding the head injuries noticed by him, as stated above, during post-mortem examination. The learned Advocate for the accused also has not emphasised in his submissions that the death was result in the present case due to some other intervening factors and not a direct result of the aforesaid head injury.
15. When one has to consider the aspect of common intention on the part of such accused in such an incident, then it does not seem that all the accused had entertained an intention to bring about the death of the deceased and had acted pursuant to the same sharing the common intention. If it was otherwise then many more injuries would have been caused to the deceased than were noticed as aforesaid. It is in evidence that two of the accused, namely, accused Nos. 1 and 4, were with sticks and accused No. 3 was with an iron pipe. If those sticks and iron pipe were used pursuant to any such common intention to cause death of the deceased, then several other injuries would have been noticed on the dead body of the deceased. The evidence led by the prosecution itself shows that accused No. 1 had never aimed on a vital part of the body of the deceased and at best, he had given one blow only with a stick. So far as accused No. 3 is concerned, the evidence led by the prosecution itself shows that he had wielded the pipe only once. There were no repeated blows either with pipe or sticks. There is no evidence worth the name to show that accused No. 4 had wielded his stick so as to cause stick injuries to the deceased. If three of the accused, including two accused who were young and energetic, had decided or planned to bring about a murder of the deceased, then in all probability the aforesaid would not have been the only injuries to be noticed on the person of the deceased. As stated above, according to the complainant herself, it was she who was beaten by accused No. 2 and that too with hands. The complainant has not claimed that any of the accused had wielded any stick or pipe on her. The deceased was coming on a cycle and taking the best view of the prosecution evidence, he was attacked only in the manner aforesaid. Along with the aforesaid factors, the evidence regarding motive, which has been referred to herein-above, is certainly no evidence of any strong motive. The dispute regarding seniority and a cut of one day's pay, even if it is believed to be true, would not infuriate a person like the accused No. 1 or for that matter persons like accused Nos. 3 and 4, who were just coming up and who were members of a family which was headed by a school teacher, to entertain a common intention to bring about the death of the deceased. The subsequent conduct of accused Nos. 1, 3 and 4 also shows that none of them has given any repeated blows. That certainly would not be the conduct of all or any of the accused, who were not to kill the deceased. Apart from the aforesaid, from the evidence led in the case, it is difficult to cull out as to when that common intention to murder the deceased developed in the present case if at all. The incident as narrated by the complainant had started only with the beating of the complainant at best and that too with hands by accused No. 2. When the deceased came on the scene, he was at best attacked in the manner aforesaid. There is no evidence that any of accused Nos. 1, 3 and 4 had uttered anything at that time to show that their intention was to murder the deceased. There is also no evidence in the case to show that by any action of accused Nos. 1, 3 and 4, they had disclosed that their intention was to murder the deceased. To say the least, the evidence regarding common intention in the present case to murder the deceased is very feeble even if one takes the most favourable view in favour of the prosecution of the evidence led in this connection. To impose vicarious liability on the accused with the aid of Section 34 I.P.C. is a very serious matter, particularly when a person has died. Persons cannot in such a case be either convicted lightly or be acquitted lightly. The evidence has to be weighed very closely when constructive liability is to be fostered upon the accused. In the entirety of the evidence, we are firmly of the opinion that the evidence in the present case regarding common intention to murder the deceased on the part of all or any of the accused falls much short, when one considers the requirements of Section 34 of the I.P.C. in this connection. The conclusion, therefore, in this connection is that there is no evidence regarding common intention for committing an offence under Section 302 read with 34 I.P.C. or Section 304 Part II read with Section 34 I.P.C. on the basis of which one can conclude that the case has been established beyond reasonable doubt in this connection by the prosecution.
16. This brings us to another consideration, namely, whether there was any common intention even to cause an offence, which was lesser than an offence under Section 302 of the I.P.C. on the part of accused Nos. 1, 3 and 4 or on the part of all the accused. The charge, Ex. 3, is also on the said basis, but as stated hereinabove the conviction under Sections 323, 504 and 506(1) of the I.P.C. in the case of accused No. 1; the conviction under Sections 504 and 323 of the I.P.C. in the case of accused No. 2; and the conviction in the case of accused No. 4 under Section 323 of I.P.C. have not been with the aid of Section 34 of the I.P.C. The case of the prosecution in this connection, therefore, was negatived by the learned Additional Sessions Judge. The State has not come in appeal before this court in respect of the said negation of the case of the prosecution. It would, therefore, seem that in an appeal at the instance of the original accused, this aspect cannot be gone into by this court. In that view of the matter, this aspect of the matter need not detain us any further.
17. We shall now proceed to consider the appellants' case regarding accused No. 1 for his conviction under Sections 323, 504 and 506(1) of the I.P.C. As stated hereinabove, accused No. 1 has been sentenced to R.I. for three months for an offence under Section 323 of the I.P.C.; to undergo R.I. for 3 months for an offence under Section 504 of the I.P.C. as well as to undergo R.I. for six months for offence under Section 506(1) of the I.P.C. As stated above, all the substantive sentences in the case of the accused No. 1 have been ordered to run concurrently. Learned Advocate for the appellants Mr. Shethna has fairly stated before us that in view of the evidence on record, it is not possible for him to challenge convictions of accused No. 1 under the said sections. He, however, brings it to our notice that accused No. 1 has been in prison on 6-12-86; that he had been bailed out up to 14-12-86 and from 15-12-86 accused No. 1 is continuously in prison. He further brings it to our notice that accused No. 1 was sentenced to undergo R.I. for five years and also to pay a fine of Rs. 3500/- for an offence punishable under Section 304 Part II read with Section 34 of the I.P.C. We have already held hereinabove that the order of conviction under Section 304 Part II read with Section 34 I.P.C cannot be sustained and has to be set aside. That would leave the aforesaid order in the case of accused No. 1 regarding minor offences. If the aforesaid conviction regarding major offence under Section 304 Part II read with Section 34 of I.P.C. in the case of accused No. 1 no longer survives and if the trial court had come to the same conclusion, then certain other considerations would have been in the field before the trial court itself. If the trial court had recorded an order of acquittal regarding the aforesaid major offence in the case of accused No. 1, then the trial court would have proceeded to consider the case of the accused No. 1 from different angles, namely, whether there was any scope for releasing accused No. 1 on probation. The trial Court also would have considered in those contingencies the personal factors regarding accused No. 1, namely, that he was living a settled way of life; that he was aged 58 years; that his past was without any blemish; that he was nearing the retirement age and an order of conviction even regarding the minor offences would have meant for him a total loss of all pensionary benefits. The aforesaid would have been weighty considerations which the trial court itself would have had to consider, if it had not recorded a finding regarding conviction for the aforesaid major offence under Section 304 Part II of the I.P.C. when this court now is of the view that the said order regarding major conviction cannot be sustained in the facts and circumstances of the case, those very considerations are placed before us by the learned Advocate for accused No. 1. In addition, learned Advocate for the accused No. 1 has submitted that wheels of time cannot be put in the reverse gear, meaning thereby that it is not possible to undo what has been done to accused No. 1, who has languished in jail, as stated hereinabove. That also, in our opinion, is a weighty aspect of the matter before us.
18. To lend support to the aforesaid considerations, Mr. Shethna has invited our attention to the decision in the case of Rajbir v. State of Haryana, 1986 Guj LH 117 : (1985 Cri LJ 1495). In this case before the Supreme Court, four persons were convicted under Section 304 Part II and Section 323, both read with Section 34 of the I.P.C. by the Sessions Judge, Bhiwani. The accused went in appeal to the High Court and the conviction of all, except one, under Section 304 Part II was set aside, but the conviction under Section 323 of the I.P.C. along with the sentence was maintained. It has been observed in the said judgment that from the judgment of the High Court, it appeared that though the sentence imposed for the offence under Section 323 of the I.P.C. was six months, the appellant and the co-accused had already suffered over one year's imprisonment; and that ordinarily in such a situation there would be no need for the Supreme Court to interfere. The Supreme Court, however, considered that the appellant was in Government service and if the conviction and sentence were maintained, he would lose his service. The Supreme Court then considered the facts of the case before them and ultimately reached a conclusion that since there was no material on the record to indicate that the appellant had any previous conviction, in absence of such evidence the Supreme Court treated the appellant as a first offender. The Supreme Court, in that view of the matter, admitted the appellant to the benefits of probation under Section 3 of the Probation of Offenders Act, 1958, taking into consideration the circumstances of the case, the nature of the offence and the character of the appellant. The Supreme Court had specifically observed that they were of the view that in the peculiar facts of the case, the conviction should not affect his service.
19. The ratio of the said decision is clearly applicable in the case of accused No. 1. We have already narrated hereinabove the peculiar facts of the present case also and it is not necessary to repeat them. It is, however, to be highlighted that accused No. 1 is a person, who has led a normal life up to the age of 58 years; who has no previous convictions; who felt that his right regarding seniority was adversely affected for no fault of his own and who was a teacher by profession. There is also nothing on the record to show that his service career had any blemish. Unlike the case before the Supreme Court, in the present case the conviction for those minor offences are not in conjunction with Section 34 of the I.P.C. There is also an additional strong circumstance in favour of accused No. 1 that he has already served out the sentence to the extent mentioned above and has lost a precious period of his life languishing in jail. We have, therefore, no hesitation in reaching a conclusion that accused No. 1 is entitled to the benefit of probation under Section 3 of the Probation of Offenders Act, 1958 taking into consideration all the aforesaid weighty considerations.
20. This brings us to considering the case regarding accused Nos. 2 and 4. As stated above, accused No. 2 was found guilty of an offence punishable under Section 304 Part II read with Section 34 of the I.P.C. For the reasons stated above, this conviction cannot be sustained. Accused No. 2 has also been convicted under Sections 504 and 323 of the I.P.C. for which offences accused No. 2 has been directed, instead of imposing any punishment, that she be released on her entering into a bond of Rs. 5000/- with two sureties to appear and receive sentence when called upon during the period of two years from the date of the order of sentence and in the meantime to keep peace and be of good behaviour. Mr. Shethna, representing accused No. 2, has made the submission regarding conviction for the aforesaid minor offences in her case that he cannot with emphasis challenge the said order of conviction in view of the evidence led in the case. The most part of the period of two years as fixed under the order of the trial court is over by now. In the peculiar facts of the case, it would be in the interest of justice to reduce the said period to one of one year instead of two years in the case of accused No. 2.
21. So far as accused No. 4 is concerned, he has also been convicted for the offence under Section 304 Part II read with Section 34 of I.P.C. as also for an offence under Section 323 of the I.P.C. In the case of accused No. 4, the conviction under Section 304 Part II read with Section 34 I.P.C. has to be set aside for the reasons aforementioned. For the offence under Section 323 I.P.C. the case of accused No. 4 is more or less on the same footing as that of accused No. 2 and he had also been given the benefit of Probation of Offenders Act as stated in the judgment of the trial court. The age of accused No. 4 was only 17 years at the time of incident. No useful purpose would be served by sending him to jail. So far as his conviction under Section 323 I.P.C. is concerned, Mr. Shethna has fairly stated that he is unable to challenge the same in view of the evidence led in the case. In the case of accused No. 4, except to the extent mentioned above regarding the said offence under Section 304 Part II read with Section 34 I.P.C., we confirm the order of conviction and sentence.
22. We now proceed to consider the case regarding accused No. 3, who has been sentenced to undergo R.I. for five years for an offence under Section 304 Part II of the I.P.C. There is no reason to doubt the evidence against him regarding his giving a blow to the deceased with an iron pipe. He has been convicted for his individual act in that connection under Section 304 Part II of the I.P.C. and sentenced to undergo R.I., for five years. In view of the evidence on record, Mr. Shethna has fairly submitted that he is not in a position to challenge with emphasis the order of conviction in the case of accused No. 3 under Section 304 Part II of I.P.C. He, however, with emphasis has urged before us that accused No. 3 was a young man, aged about 19 years at the time of the offence. Accused No. 3 also has been in jail for the same period as in the case of accused No. 1 so far. Mr. Divetia tells me that accused No. 3 was on parole for about a month and that the probable date of release in the case of accused No. 3 on the basis that he has fully served out the sentence is 14-5-1990. The aforesaid makes it evident that accused No. 3 has undergone a major part of the sentence by. now. Mr. Divetia further informs us that the conduct of the accused No. 3 in Jail is good and that he has committed no jail offence. It is also to be appreciated that the present is not a case, which has arisen at the instance of persons, who are common criminals or habitual offenders. Of course, it is unfortunate that such an incident should have happened, but then also the totality of the circumstances existing in a case have always got to be taken into consideration while considering the aspect of sentence in a particular case. The relative importance of a person being in Jail and of a person being out of jail has a great impact on the society and it also has an impact on the individual himself. There are persons who cannot be suffered out of jail because of the attending circumstances in their case, but there are also persons who should not be in jail for a period which is more than necessary. Taking an overall view of the entire set of circumstances prevailing in their present case no useful purpose would be served by keeping accused No. 3 any longer in jail. On the contrary, it might harden his attitude towards life, his conduct with other criminals may also bring about undesirable results and his rehabitation in society the longer it is delayed, the more it would become difficult. All the same, we do not propose to give him any benefit under the provisions of Probation of Offenders Act, considering the circumstances of the case, but then we consider that the sentence imposed by the trial court in his case needs to be reduced to the sentence undergone. At the same time, considering that it is at the hands of accused No. 3 that a fatal incident was occurred, we deem it fit on the one hand to reduce the sentence of imprisonment as the sentence having been undergone and on the other to impose a fine of Rs. 3500/- on accused No. 3 and out of the said fine, Rs. 3000/- be paid to the widow of the deceased as compensation under Section 357(1) of the Criminal Procedure Code.
23. The appeal is, therefore, partly allowed.
24. The order of conviction and sentence in the case of accused No. 1 for an offence under Section 304 Part II read with Section 34 I.P.C. is quashed and set aside and fine, if paid, be refunded. The convictions under Sections 323, 504 and 506(1) of the I.P.C. are confirmed, but so far as the sentences regarding aforesaid minor offences are concerned, he be given benefit of probation under Section 3 of the Probation of Offenders Act, 1958 and he be released on his enterting into a bond of Rs. 5000/- with two solvent sureties to appear and receive sentence when called upon during the period of three months from the date of the present order and in the meantime to keep peace and be of good behaviour. We also make it clear that in the peculiar facts of the present case the order of conviction in the case of accused No. 1 should not affect his service.
25. The order of conviction and sentence in the case of accused No. 2 for an offence under Section 304 Part II read with Section 34 I.P.C. is quashed and set aside. The convictions under Sections 504 and 323 I.P.C. are confirmed, but the period of bond is reduced from two years to one year.
26. The order of conviction in the case of the accused No. 3 for the offence under Section 304 Part II I.P.C. is confirmed, but the sentence is reduced to the one already undergone by him and a fine of Rs. 3500/- is imposed on him and out of the said amount of fine, Rs. 3000/-be paid to the widow of deceased as compensation under Section 357(1) of Criminal Procedure Code. The amount of Rs. 3000/- be paid to the widow of the deceased as early as possible, as accused No. 3 has stated through his Advocate that the said fine will be deposited in the court on or before 7-11-89.
27. The order of conviction and sentence in the case of accused No. 4 for an offence under Section 304 Part II read with Section 34 I.P.C. is quashed and set aside. The order of conviction and sentence for an offence under Section 323323 I.P.C. as passed by the trial court is confirmed.