Karnataka High Court
Shamsaheb Neerasaheb Multani vs State Of Karnataka on 10 April, 2002
Equivalent citations: 2003CRILJ526, I(2003)DMC156, 2003 CRI. L. J. 526, 2003 AIR - KANT. H. C. R. 68, (2003) 1 DMC 156, (2003) 1 MARRILJ 698, (2003) 1 RECCRIR 759, (2003) 2 ALLCRILR 541
Author: N.K. Patil
Bench: N.K. Patil
JUDGMENT M.P. Saldanha, J.
1. We have heard the appellant's learned Advocate and the learned Additional State Public Prosecutor on merits. Once again, though technically this criminal appeal concerns an order of conviction dated 3rd December 2001, effectively one needs to take note of certain other facts, the first of them being that the incident in question is alleged to have taken place on 17th October 1992. The appellant before us is the husband and the allegation against him was that he had severely assaulted his wife by the name of Tanima and that as a result of the injuries she died. The case has gone through several phases insofar as the accused was once acquitted, thereafter he came to be convicted by the High Court and on an appeal to the Supreme Court, the conviction of the High Court was set aside on the ground that he was originally charged with an offence punishable under Section 302 of the Indian Penal Code and the High Court had convicted him of the offence punishable under Section 304-B of the Indian Penal Code and that this conviction was bad in law because, there was no charge under the latter head. The Supreme Court therefore set aside the order of conviction recorded by the Trial Court and remanded the case to the Trial Court where upon, the Trial Court framed a fresh charge against the accused under Section 304-B of the Indian Penal Code. The Trial Court has finally through the present judgment dated 3rd December, 2001 convicted the accused for the offence punish-able under Section 304-B of the Indian Penal Code and awarded a sentence of life imprisonment. The present appeal challenges that conviction and sentence. The appeal was admitted and the appellant's learned Advocate filed an application for release on bail, Certain very valid reasons were set out, the most important of them being that as of now, the appellant before us has undergone over six-and-a-half years in custody and the submission was that even if the Court were to sustain the conviction for purposes of argument, that the Court must take cognizance of the fact that the accused has virtually served the normal sentence which the Court would award for such an offence. At the same time, the appellant's learned Advocate advanced certain other submissions on merits and after hearing him and the learned Additional State Public Prosecutor, the position that emerged was that this Court was of the view that the appeal Itself would qualify for disposal. We have heard the learned Advocates on both sides. The record is before us, we have referred to the same and there was nothing really that survived for the stage of final hearing.
2. We propose to summarise our findings with regard to the merits of the case for two reasons, the first of them being that a Division Bench of this Court on an earlier occasion has evaluated the facts of the case and the law and has recorded a conviction under Section 304-B of the Indian Penal Code against the accused. The Apex Court set aside that conviction and the judgment of the Apex Court very clearly points out that the only reason for interference was because, the Apex Court found that there was no charge against the accused for the offence under Section 304-B of the Indian Penal Code. The Apex Court has not interfered at all either with the reasoning or findings of the High Court "except having pointed out to us that this conviction was technically and legally incorrect only for want of requisite charge. It was for this reason that the proceeding was remanded to the trial Court. We then have the next stage where the learned trial Judge has applied his mind to the facts of the case and he has once again recorded a conviction under Section 304-B of the Indian Penal Code. Though the appellant's learned Advocate has vehemently submitted that the findings recorded both by the trial Court on the earlier occasion as also by the Sessions Court on this occasion on merits are erroneous, we are not prepared to accept that submission because, there is overwhelming evidence on record to indicate that the injuries sustained by the deceased were at the hands of the accused. Under these circumstances, no interference is called for as far as the conviction under Section 304-B of the Indian Penal Code is concerned.
3. The only area where we propose to exercise some level of discretion is on the question of sentence and the appellant's learned Advocate pointed out to us the age of the accused, he also pointed out to us the status of the accused that he is a poor tailor, and he also pointed out to us several other facts and circumstances from the record on the basis of which, he submitted that this is a case which will qualify for some reduction of sentence. The learned Additional State Public Prosecutor has contested this position and his strongest argument was that the High Court itself on the earlier occasion awarded a sentence of imprisonment for life and that in this background, there is really no case made out to take any other view. As far as this submission goes, what we need to point out is that on the earlier occasion, when the appeal was allowed by the High Court, none of the special extenuating circumstances which have been pointed out to us today by the appellant's learned Advocate had been placed before the Court as is evident from the judgment and consequently, that submission canvassed will not hold good.
4. On a very careful appraisal of the record of this case, we are of the view that since the appellant has undergone imprisonment for over six-and-a-half years, that the period of sentence undergone by him would meet the ends of justice.
5. Accordingly, while sustaining the conviction of the appellant for the offence punishable under Section 304-B of the Indian Penal Code, we direct that he shall undergo imprisonment for a period of seven years which is the minimum prescribed under the Section. At this stage, the appellant's learned Advocate brings to our notice a decision of the Supreme Court reported in 2000 (2) Supreme (Cr) 17 : (AIR 2000 SC 2111: 2000 Cri LJ 3167) (Umesh Singh v. State of Bihar). In that case, though the Supreme Court confirmed the conviction, it was pointed out to the Court that on the day when the offence was committed, the accused was a minor and that the submission was therefore that the trial Court has overlooked this fact and that the conviction should be set aside. The Supreme Court has, in a well considered judgment, held that the facts justify the confirmation to the conviction but, since the accused was a minor on the date when the offence was committed, that the sentence awarded to him had to be set aside. The Supreme Court had relied on an earlier decision of the Supreme Court in Bhola Bhagat v. State of Bihar and had consequently directed that even though the conviction was sustained, the sentence would have to be set aside. In the present case, the record does indicate that the accused on the date of the commission of the offence was supposed to have been between 15 and 16 years of age and secondly, the aforesaid judgment of the Supreme Court would apply to the facts of the present case. Even otherwise, having regard to the normal rules and having regard to the fact that the accused persons are entitled to remissions, the accused would not probably serve whatever sentence is awarded to him but, we need to take note of the aforesaid decision of the Supreme Court wherein even though the conviction is sustained, the sentence would have to be set aside.
Having regard to the aforesaid position, while the appeal partially succeeds we direct that the appellant be set at liberty forthwith if not required in connection with any other offence.