Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 442 of 2015, Judgment Date: Mar 13, 2015



                                                          REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 442 of 2015
                        (@ SLP(Crl.) No.1506 of 2012)


Tukaram Dnyaneshwar Patil                            ..       Appellant(s)

                                   versus

State of Maharashtra & Ors.                            ..    Respondent(s)

                                    With
                       CRIMINAL APPEAL NO. 443 of 2015
                        (@ SLP(Crl.) No.1505 of 2012)

                               J U D G M E N T
C. NAGAPPAN, J.

Leave granted in both the appeals.
Both the appeals  are preferred against the judgment dated 14.7.2011  passed
by the High Court of  Judicature  at  Bombay,  Nagpur  Bench  at  Nagpur  in
Criminal Appeal No.284 of 1998, whereby the High Court  partly  allowed  the
said Criminal Appeal filed by respondents 2 to 4 herein/accused 1 to  3  and
thereby set aside their conviction and sentence under Section 302 read  with
Section 34 IPC and instead convicted them  for  offence  under  Section  304
Part-II read with Section 34 IPC and  sentenced  them  to  imprisonment  for
period already undergone and directed them to pay jointly  and  severally  a
sum of Rs.1,05,000/-  to  PW1  Narayan  Patil  and  family  members  of  the
deceased  as compensation in default to undergo  rigorous  imprisonment  for
two years and the High  Court  maintained  the  conviction  of  the  accused
persons under Section 324 read with Section 34 IPC but reduced the  sentence
to the period already undergone.   Aggrieved  by  the  same  the  State  has
preferred Criminal Appeal No. 443 of 2015  (@  SLP(Crl.)  No.1505  of  2012.
The complainant Tukaram Dnyaneshwar Patil also preferred appeal in  Criminal
Appeal No. 442 of 2015  (@  SLP(Crl.)  No.1506  of  2012.   Since  both  the
appeals have been preferred  against  the  same  judgment,  they  are  heard
together and a common judgment is rendered.
 Briefly the facts are stated as follows :  The  accused  and  the  deceased
belonged to village Tuljapur Tah. Wardha.  PW1 Narayan Patil is the  brother
of deceased Dnyaneshwar Patil and he was also residing in the same  village.
 Tukaram is the son of the  deceased.   There  was  a  dispute  between  the
deceased Dnyaneshwar Patil and accused A1-Dipak,  A2-Prashant  and  A3-Pawan
over the boundary of the field and  on  22.10.1997  accused  no.1  assaulted
Dnyaneshwar Patil by means  of  sickle  on  the  left  ear  and  A2  and  A3
assaulted him by means of sticks on his head and mouth.   When  PW1  Narayan
Patil intervened, accused nos.1 to 3 assaulted him with sticks  on  his  arm
and head.  PWs 2 to 4, PW8 and PW9 witnessed the  occurrence.   The  injured
were taken to Sewagram Hospital.
PW6 Dr. Rajeshkumar examined and found the following injuries on the  person
of Dnyaneshwar Patil :
Bleeding from nose and left ear.
Lacerated wound on left mastoid, 5 cm x 2 cm.
Lacerated wound on medial aspect of pinna.
Fracture of mandible.
Exh.64 injury report was issued by him.
      PW6 Dr. Rajeshkumar found the following injuries on the person of  PW1
Narayan Patil :
Lacerated would on left side of the back 5 cm x 3 cm.
Abrasion on left upper arm 7 cm x 5 cm.
Abrasion on right upper arm 7 cm x 4 cm.
Abrasion on right side of back 10 cm x 4 cm.
He opined that all the above injuries were simple in nature  and  caused  by
blunt object.
5.    The head constable of medical booth  Sewagram  Hospital  recorded  the
complaint given by PW1 Narayan Patil and  sent  the  same  to  Sindi  Police
Station, on which a case in Crime no.122 of 97 came to be  registered  under
Section 326 read with Section  34  IPC  and  PW14  P.S.I.  of  Sindi  Police
Station took up the case for investigation.  In the meantime,  both  injured
were shifted to Nagpur Medical College Hospital.  Dnyaneshwar Patil died  on
25.10.1997 in the hospital and on receiving  the  intimation  the  case  was
altered to one under Section 302 IPC.  Inquest was conducted  and  witnesses
were examined.
6.    PW12 Dr. Pradip Jadhao and Dr. V.R. Agrawal conducted post  mortem  on
the body of Dnyaneshwar Patil in the Nagpur Hospital on 26.10.1997 and  they
found fracture base of  skull  and  haematoma  under  the  scalp  over  left
temporo parieto occipital region.  The opinion  was  given  that  death  was
caused due to injuries no.3 and 4  mentioned  in  the  post  mortem  report.
After the investigation charge sheet came to  be  filed  and  the  case  was
committed to the court of Sessions.  Charges under  Section  302  read  with
Section 34 and Section 324 read with Section  34  were  framed  against  the
accused and they were convicted and sentenced as stated supra.   Challenging
the same accused nos.1 to 3 preferred appeal and the High Court altered  the
conviction and sentence as mentioned above.   Aggrieved  by  the  same,  the
State as well as the complainant, have preferred the present appeals.
7.    We heard learned counsel for the appellant in  both  the  appeals  and
the learned counsel for the respondents.  The ocular witnesses  PWs1  to  4,
PW8 and PW9 have testified  about  the  attack  made  by  respondents  2  to
4/accused nos.1 to 3  on  Dnyaneshwar  Patil  at  the  time  of  occurrence.
Relying on their testimonies the courts below have  rightly  concluded  that
the occurrence stands proved.
8.    After the occurrence Dnyaneshwar Patil was taken to Sewagram  Hospital
and PW6 Dr. Rajeshkumar examined him and  found  lacerated  wounds  on  left
mastoid, medial aspect of pinna and noticed fracture of  mandible.   He  was
shifted to Nagpur Medical College Hospital where he succumbed  to  injuries.
PW12 Dr. Pradip Jadhao along with another surgeon conducted autopsy  on  his
body and they found fracture of  skull  with  haematoma  present  under  the
scalp over left temporo  parieto  occipital  region.   They  have  expressed
opinion that the death has occurred  due  to  the  injuries  found  on  left
mastoid region and over left pinna.  PW12 Dr. Pradip Jadhao has also  stated
in the chief-examination that the said  injuries  are  sufficient  to  cause
death in the ordinary course of nature.  Accepting the medical  evidence  it
is clear that Dnyaneshwar Patil died of homicidal violence.
9.    After analyzing the evidence  the  High  Court  held  that  there  was
quarrel which led to the occurrence and the accused had  also  injuries  and
they cannot be held guilty of the offence  of  murder  and  since  they  had
knowledge that their act is likely to cause death  they  are  liable  to  be
convicted for the offence under Section 304 Part-II IPC.   We  do  not  find
any error in the said conclusion of the High Court.
10.   The disturbing feature is the sentence awarded by the  High  Court  to
the respondents 2 to 4 for the conviction under  Section  304  Part-II  IPC.
As mentioned in the impugned judgment the respondents 2 to  4/accused  nos.1
to 3 were arrested on 29.10.1997 and they were ordered  to  be  released  on
bail on 28.9.1998 and they have undergone only eleven  months  imprisonment.
The High Court while altering the conviction to  Section  304  Part-II  IPC,
altered the sentence  to  imprisonment  for  period  already  undergone  and
directed to pay a sum of Rs.35000/-  each  to  the  complainant.   Both  the
State and complainant have challenged this alteration of sentence.
11.   Sentencing is an important task in the matters of crime.  One  of  the
prime  objectives  of  the  criminal  law  is  imposition  of   appropriate,
adequate, just and proportionate sentence commensurate with the  nature  and
gravity of crime and the manner in which the crime is done.  With  reference
to sentencing by courts, this Court in the decision in State  of  U.P.   vs.
Shri Kishan (2005) 10 SCC 420 made these weighty observations :
"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.............

7. The object should be to protect the society and to deter the criminal  in
achieving the avowed object of law by imposing appropriate sentence.  It  is
expected that the courts would  operate  the  sentencing  system  so  as  to
impose such sentence which reflects the conscience of the  society  and  the
sentencing process has to be stern where it should be.

8. ................. Any liberal attitude by imposing  meagre  sentences  or
taking too sympathetic view merely on account of lapse of  time  in  respect
of such offences will be resultwise counterproductive in the  long  run  and
against societal interest which needs to be cared for  and  strengthened  by
string of deterrence inbuilt in the sentencing system.

9. The court will be failing in its duty if appropriate  punishment  is  not
awarded  for  a  crime  which  has  been  committed  not  only  against  the
individual victim but also against the society to  which  the  criminal  and
victim belong. The punishment  to  be  awarded  for  a  crime  must  not  be
irrelevant but it should conform to and be consistent with the atrocity  and
brutality with which the crime has been perpetrated,  the  enormity  of  the
crime warranting public abhorrence and it should "respond to  the  society's
cry for justice against the criminal".

12.         The facts and circumstances of the case which have  been  proved
by the prosecution in bringing home the guilt of the accused  under  Section
304 Part-II IPC undoubtedly show a despicable aggravated offence  warranting
punishment proportionate to  the  crime.   The  sentence  of  eleven  months
awarded by the High Court to the respondents for the said conviction is  too
meagre and not adequate and in our view it would  be  travesty  of  justice.
It is true that each of the appellant was directed to  pay  compensation  of
Rs.35000/- but no amount of compensation could relieve the family of  victim
from the constant agony.   We are of the considered view that imposition  of
five years rigorous imprisonment on each of the respondent nos.2  to  4  for
the conviction under  Section  304  Part-II  IPC  would  meet  the  ends  of
justice.  We sustain the other conviction and sentence imposed on  the  said
respondents.
13.         In the result both the criminal appeals are partly  allowed  and
the  sentence  of  imprisonment  for  period  already  undergone   for   the
conviction under Section 304 Part-II  IPC  is  set  aside  and  instead  the
respondents 2 to 4/accused nos.1 to 3 are sentenced to  undergo  five  years
rigorous imprisonment each.  All other conviction and  sentence  imposed  on
them by the High Court  are  maintained.  They  are  directed  to  surrender
before the 2nd Additional Sessions Judge, Wardha to serve out the  remaining
sentence, failing  which  the  learned  2nd  Additional  Sessions  Judge  is
requested to take them into custody and send them to  jail  to  serve  their
left over sentence.

                                              ............................J.
                                                      (V. Gopala Gowda)

                                              ............................J.
                                                           (C.Nagappan)

      New Delhi;
      March 13, 2015


 ITEM NO.1C-For Judgment   COURT NO.11               SECTION IIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Crl.A. No(s)......../2015 @ SLP (Crl.) No. 1506/2012

TUKARAM DNYANESHWAR PATIL                          Appellant(s)

                                VERSUS

STATE OF MAHARASHTRA & ORS.                        Respondent(s)

WITH
Crl.A.No......../2015 @ SLP (Crl.) No.1505/2012

Date : 13/03/2015 These petitions were called on for hearing today.

For Appellant(s)  Mr. Satyajit A. Desai, Adv.
                     Ms. Anagha S. Desai,Adv.
                        Mr. Akash Kakade, Adv.

                     Mr. Aniruddha P. Mayee,Adv.

For Respondent(s)
                     Mr. Rabin Majumder,Adv.

                     Mr. Aniruddha P. Mayee,Adv.

       Hon'ble Mr. Justice C.Nagappan pronounced the judgment of  the  Bench
comprising Hon'ble Mr. Justice V.Gopala Gowda and His Lordship.
            Leave granted.
             The  appeals  are  partly  allowed  in  terms  of  the   signed
Reportable Judgment.

    (VINOD KUMAR)                               (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
      (Signed Reportable Judgment is placed on the file)