SURYAKANT BABURAO @ RAMRAO PHAD versus STATE OF MAHARASHTRA AND OTHERS

[2019] 10 S.C.R.

SURYAKANT BABURAO @ RAMRAO PHAD

STATE OF MAHARASHTRA AND OTHERS

(Criminal Appeal No.1161 of 2019)

BJULY 30, 2019

[R. BANUMATHI AND A.S. BOPANNA, JJ.]

Penal Code, 1860 – ss.307, 323, 506 r/w. 34 – Arms Act – s.4r/w s.25 – Attempt to murder – There was some exchange of wordsbetween the accused persons (No. 1 to 3) and PW-6 – In this quarrel,CRespondent No.2-accused no.1 fired shot from his pistol at PW-6on his chest – Hearing the sound PW-5 & 7 tried to intervene –PW-7 was also shot on his left knee by accused no.1 and PW-5 wasbeaten up by the accused persons causing grievous hurt – FIR wasregistered u/s. 307 r/w. s. 34 IPC, ss.323 and 506 IPC – DoctorDstated injuries caused to PW-6 were capable of causing death –Trial Court convicted accused Nos. 1 to 3 u/s. 307 r/w s.34 IPC andsentenced them to undergo rigorous imprisonment for seven yearsand imposed fine of Rs.15000/- – Trial Court also convicted themu/s. 323 r/w. 34 IPC and sentenced each of them to undergo rigorousimprisonment for six months and pay fine of Rs. 500/- – AccusedEwere also directed to pay Rs. 20,000/- to injured PW-6 & 7 ascompensation – High Court affirmed the conviction of respondentNo.2-accused no.1 u/s. 307 r/w. s. 34 IPC, however, reduced thesentence of imprisonment from seven years to five years and imposedfine amount of Rs. 25,000/- – Insofar, respondent Nos. 3 and 4-Faccused Nos. 2 & 3 are concerned, the High Court acquitted themfrom the charges u/s. 307 r/w. 34 IPC and instead convicted themu/s. 326 r/w. s.34 IPC and reduced the sentence of imprisonmentimposed upon them to the period already undergone and imposed afine of Rs.25,000/- – High Court maintained conviction of accusednos. 1 to 3 u/s. 323 r/w. s.34 IPC – On appeal, held: When trialGCourt exercised its discretion in imposing seven years of sentenceof imprisonment, the High Court ought to have kept in view theweapon used by accused No.1 and the nature of injuries caused toPW-6 and the opinion of the Doctor – High Court was not right in

SURYAKANT BABURAO @ RAMRAO PHAD v. STATE OFMAHARASHTRA AND OTHERS

reducing the sentence of imprisonment imposed upon accused no.1– Since the enhanced compensation was paid by accused no. 1,which withdrawn by injured-victims, for conviction u/s. 307 r/w.s.34 IPC, the accused no.1 directed to undergo imprisonment forsix years and six months – So far as accused no. 2 & 3 are concerned,they were not armed and alleged to have attacked the injured withfists, kicks and with sticks – Thus, no interference required withtheir acquittal u/s. 307 r/w. s. 34 IPC and reduction of sentence ofimprisonment u/s. 326 r/w. s.34 IPC.

Partly allowing the appeal, the Court

HELD: 1. While considering the quantum of sentence, thecourts are expected to consider all relevant facts andcircumstances of the case, in particular, nature of injuries causedin the occurrence and the weapon used which will have bearingon the question of sentence and the Courts are bound to imposesentence commensurate with the gravity of the offence.Considering the nature of injuries caused to PW-6 i.e. gun shotwounds in the chest and the opinion of Doctor that the injuriescaused to PW-6 are capable of causing death, the High Court wasnot right in reducing the sentence of first accused. [Para 12][577-D-E]2. Considering the nature of the injuries caused to PW-6and PW-7 and the facts and circumstances of the case, the trialcourt convicted accused No.1 under Section 307 read with Section34 IPC and sentenced him seven years rigorous imprisonmentwith fine of Rs.15,000/-. When the trial court has exercised itsdiscretion in imposing seven years of sentence of imprisonment,the High Court ought to have kept in view the weapon used byaccused No.1 and the nature of injuries caused to PW-6 and theopinion of the Doctor. The courts must not only keep in view theright of the accused, but must also keep in view the interest ofthe victim and society at large. The courts have been consistentin approach that reasonable proportion has to be maintainedbetween the gravity of the offence and the punishment. While itis true that the sentence imposed upon the accused should notbe harsh, inadequacy of sentence may lead to sufferance of the

Avictim and the community at large. So far as the first accused isconcerned, the High Court was not right in reducing the sentenceof imprisonment imposed upon first accused. As pointed outearlier, the High Court reduced the sentence of imprisonmentfrom seven years to five years and increased the fine amount toRs.25,000/- and part of the said fine amount was ordered to beBpaid as compensation to the injured PW-6 and PW-7. Since theenhanced compensation was paid by accused No.1 which is saidto have been withdrawn by injured-victims, for conviction underSection 307 read with Section 34 IPC, the first accused shallundergo rigorous imprisonment for six years and six months.C[Para 16] [578-G-H; 579-A-D]

3. So far as respondent Nos.3 and 4-accused Nos.2 and 3are concerned, at the time of occurrence, they were not armed.Accused Nos.2 and 3 are alleged to have attacked the injuredwith fist and kicked and with sticks. Considering the facts and

Dcircumstances of the case and the evidence on record, this Courtis not inclined to interfere with the acquittal of accused Nos.2and 3 under Section 307 read with Section 34 IPC. So far asconviction under Section 323 read with Section 34 IPC, the HighCourt took into consideration that accused No.2 was nineteenyears old at the time of occurrence and accused No.3 was thirty-Eeight years old and keeping in view their age and familycircumstances and that they were not having criminalantecedents, the High Court thought fit to reduce the sentenceof imprisonment from six months to the period already undergoneby them. Since accused Nos.2 and 3 were not armed with theFdeadly weapons, this Court is not inclined to interfere with theiracquittal under Section 307 read with Section 34 IPC and thereduction of sentence of imprisonment under Section 326 readwith Section 34 IPC. [Para 17][579-E-H]

State of Punjab v. Bawa Singh (2015) 3 SCC 441 :G[2015] 1 SCR 709 ; Ravinder Singh v. State of Haryana(2015) 11 SCC 588 ;Sevaka Perumal and Another v.State of Tamil Nadu (1991) 3 SCC 471 : [1991] 2SCR 711 – relied on.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 1161 of 2019

From the Judgment and Order dated 12.07.2018 of the High Courtof Judicature of Bombay, Bench at Aurangabad in Criminal AppealNo.11 of 2016

Uday B. Dube, Adv. for the Appellant.

Nishant Ramakantrao Katneshwarkar, Sudhanshu S. Choudhari,Sandeep Sudhakar Deshmukh, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. BANUMATHI, J.

1. Leave granted.

2. This appeal arises out of the judgment dated 12.07.2018 passedby the High Court of Judicature of Bombay at Aurangabad in CriminalAppeal No.11 of 2016 in and by which the High Court affirmed theconviction of respondent No.2-accused No.1 under Section 307 IPCread with Section 34 IPC and reduced the sentence of imprisonmentimposed upon him from seven years to five years and imposed fineamount of Rs.25,000/-. Insofar respondent Nos.3 and 4-accused Nos.2and 3, the High Court acquitted them from the charges under Section307 read with Section 34 IPC and instead convicted them under Section326 read with Section 34 IPC and reduced the sentence of imprisonmentimposed upon them to the period already undergone and imposed fineamount of Rs.25,000/- upon each of them. The High Court maintainedthe conviction of accused Nos.1 to 3 under Section 323 read with Section34 IPC also the sentence of imprisonment imposed upon each of them.

3. The appellant-Complainant has filed this appeal challenging thereduction of sentence of imprisonment of respondent Nos.2 to 4. Caseof prosecution is that on 24.01.2012 at about 05.30 PM, when

574SUPREME COURT REPORTS

AChandrakant (PW-6) was proceeding towards his land via Pangaon ‘T’point, respondent No.2-Devraj (A1) who along with respondent No.3-Ashish (A2) and respondent No.4-Balaji (A3) was standing near themobile shop of one Prahlad Joshi, asked PW-6-Chandrakant why heobstructed respondent No.4-Balaji (A3) from spreading the rubble in hisfield and there was some exchange of words between them. In thisBquarrel, Devraj (A1) took out pistol from his waist and fired one shot atPW-6-Chandrakant on his chest. Hearing the sound, Suryakant (PW-7), Shivaji (PW-5) and others rushed to the spot. Accused Nos.2 and 3were alleged to be holding stick and stone respectively in their hands.When Suryakant (PW-7) tried to intervene, accused No.1 fired bulletCfrom his pistol which hit on the left knee of PW-7. When Shivaji Phad(PW-5) tried to intervene, accused persons beat him with fists and kickedand also inflicted knife blow on him causing him grievous hurt and thenaccused fled away. Injured PW-6 and PW-7 were taken to hospital andwere given treatment. Suryakant (PW-7) lodged the complaint based onwhich FIR was registered under Section 307 read with Section 34 IPC,DSections 323 and 506 IPC. On completion of investigation, charge sheetwas filed against the accused under Sections 307, 323 and 506 read withSection 34 IPC and under Section 4 read with Section 25 of the ArmsAct. Later, charge under Section 4 read with Section 25 of the ArmsAct was altered to Section 3 read with Section 25 of the Arms Act.

4. To prove the guilt of the accused, in the trial court the prosecutionexamined thirteen witnesses and produced number of documents. Relyingupon the evidence of injured eye-witnesses Chandrakant (PW-6),Suryakant (PW-7) and eye-witness Ram Phad (PW-4) and also uponthe medical evidence, the trial court vide judgment dated 23.12.2015Fconvicted accused Nos.1 to 3 under Section 307 IPC read with Section34 IPC and sentenced each of them to undergo rigorous imprisonmentfor seven years and also to pay fine of Rs.15,000/- each with defaultclause. The trial court also convicted them under Section 323 read withSection 34 IPC and sentenced each of them to undergo rigorousimprisonment for six months and to pay fine of Rs.500/- each withGdefault clause. The trial court directed that out of the fine amount paidby the accused, Rs.20,000/- be given to injured Chandrakant (PW-6)and Suryakant (PW-7) each as compensation as per the provision ofSection 357 Cr.P.C.

5. In the appeal filed before the High Court, the High Courtaffirmed the conviction of accused No.1-Devraj under Section 307 readwith Section 34 IPC but reduced the sentence of imprisonment imposedupon him to five years. Additionally, the High Court directed accusedNo.1-Devraj to pay fine of Rs.25,000/- with default clause. The HighCourt also convicted accused No.1-Devraj under Section 326 read withSection 34 IPC and reduced the sentence of imprisonment imposed uponhim to the period already undergone by him and also directed to pay afine of Rs.15,000/- with default clause. Insofar as conviction and sentenceof imprisonment under Section 323 read with Section 34 IPC, the HighCourt maintained the same. The High Court acquitted accused No.2-Ashish and accused No.3-Balaji from the charge under Section 307read with Section 34 IPC and instead convicted them under Section326 read with Section 34 IPC and imposed the sentence of imprisonmentto the period already undergone by them and accused Nos.2 and 3 weredirected to pay fine of Rs.25,000/- each with default clause. The HighCourt maintained the conviction and sentence of imprisonment underSection 323 IPC read with Section 34 IPC imposed upon accused No.2-Ashish and accused No.3-Balaji. Out of the fine amount deposited bythe accused, sum of Rs.60,000/- was directed to be paid to PW-6-Chandrakant and sum of Rs.30,000/- was ordered to be paid to PW-7-Suryakant as compensation under Section 357 Cr.P.C. Being aggrieved,injured complainant-Suryakant (PW-7) has preferred this appeal.

6. We have heard Mr. Uday B. Dube, learned counsel appearingfor the appellant and Mr. Sudhanshu S. Choudhari, learned counselappearing for respondent Nos.2 and 3-accused Nos.1 and 2 and Mr.Sandeep Sudhakar Deshmukh, learned counsel appearing for respondentNo.4-accused No.3 and also Mr. Nishant R. Katneshwarkar, learnedcounsel appearing for the State and perused the impugned judgment andmaterials on record.

7. The learned counsel appearing for the appellant inter aliasubmitted that accused No.1-Devraj shot bullet in the chest of PW-6-Chandrakant which pierced through his chest and came out from theback side and PW-11-Dr. Manoj Landge opined that the injury sustainedby PW-6-Chandrakant was grievous in nature which was capable ofcausing death and while so, the High Court was not right in showingundue sympathy to the respondents-accused and reducing the sentenceof imprisonment imposed upon them.

A8. The learned counsel appearing for respondent Nos.2 to4-accused Nos.1 to 3 have submitted that considering the facts andcircumstances of the case and the age of respondent Nos.3 and 4 andother circumstances, the High Court exercised its discretion in reducingthe sentence of imprisonment and at the same time increased the fineamount to be paid as compensation as per the provision under SectionB357 Cr.P.C. and the impugned judgment reducing the sentence ofimprisonment warrants no interference.

9. person committing an offence under Section 307 IPC can beordered to undergo imprisonment for life. To justify conviction underSection 307 IPC, intention of causing death or that it was done with theCintention of causing such injury which is likely to cause death is necessaryto constitute the offence. Although the nature of injury actually causedwould be of considerable assistance in coming to finding as to theintention of the accused. Such intention may also be deduced fromother circumstances.D

10. Accused No.1-Devraj was serving in the Army and waspossessing licence for carrying the pistol. If the evidence of injuredwitnesses PW-6-Chandrakant and PW-7-Suryakant and eye-witnessPW-4-Ram Phad is considered in its entirety, it becomes clear that theattempt by accused No.1-Devraj was with intention to teach lesson toEPW-6-Chandrakant as to why he opposed accused No.3-Balaji fromspreading the rubble in his field and there was some hot exchange ofwords between them. Accused No.1-Devraj carrying the pistol shot atPW-6-Chandrakant at his chest which pierced through his chest. WhenPW-7-Suryakant tried to interfere, accused No.1-Devraj shot at PW-7-Suryakant also.F

11. In the occurrence, PWs 6 and 7 sustained the following injuries:-

“Injuries noticed on person of PW-6-Chandrakant

1) Punctured wound over lower 1/3[rd] of Pre-sternal area 2 × 2 cmoval, age less than six hours.

2) Punctured wound over right side of chest post-axillary line aboutin 7 inter costal space 2 × 2 cm oval, age less than six hours.

3) Contused lacerated wound over scalp left parieto occipital region,2 × 1 × 0.5 cm, age less than six hours, simple in nature.

Injuries noticed on person of PW-7-Suryakant

1) Punctured wound on lateral aspect of upper part of left knee 2× 2 cm oval, age less than six hours, simple in nature.

2) Punctured wound over medical aspect of popliteal region 2 × 2cm oval, age less than six hours. Grievous in nature. X-rayshows displaced fracture of supracondylor.

The bullet injury pierced through the chest of PW-6-Chandrakantand came out from the back side. In his evidence, PW-11-Dr. ManojLandge specifically stated that injuries No.1 and 2 caused to PW-6-Chandrakant were capable of causing death. So far as the injuries causedto PW-7-Suryakant are concerned, PW-11-Dr. Manoj Landge opinedthat they were not fatal to life.

12. While considering the quantum of sentence, the courts areexpected to consider all relevant facts and circumstances of the case, inparticular, nature of injuries caused in the occurrence and the weaponused which will have bearing on the question of sentence and the Courtsare bound to impose sentence commensurate with the gravity of theoffence. Considering the nature of injuries caused to PW-6-Chandrakanti.e. gun shot wounds in the chest and the opinion of Doctor that theinjuries caused to PW-6 are capable of causing death, in our view, theHigh Court was not right in reducing the sentence of first accused-Devraj.

13. The question of awarding sentence is matter of discretionfor the courts and has to be exercised on consideration of facts andcircumstances of the case. Though the court has discretion in awardingthe sentence, it should be commensurate with the gravity of the offence.The court has to record brief reasons to explain the choice of sentence.In State of Punjab v. Bawa Singh (2015) 3 SCC 441,the SupremeCourt in para (16) held as under:-

“16. ……. undue sympathy to impose inadequate sentence woulddo more harm to the justice system to undermine the publicconfidence in the efficacy of law. It is the duty of every court toaward proper sentence having regard to the nature of the offenceand the manner in which it was executed or committed. Thesentencing courts are expected to consider all relevant facts andcircumstances bearing on the question of sentence and proceed

Ato impose sentence commensurate with the gravity of theoffence. The court must not only keep in view the rights of thevictim of the crime but also the society at large while consideringthe imposition of appropriate punishment. Meagre sentenceimposed solely on account of lapse of time without consideringthe degree of the offence will be counterproductive in the longBrun and against the interest of the society.”

14. In Ravinder Singh v. State of Haryana (2015) 11 SCC588, it was held as under:-

“11. The question of sentence is always difficult task requiringCbalancing of various considerations. The question of awardingsentence is matter of discretion to be exercised on considerationof circumstances aggravating and mitigating in the individual cases.The law courts have been consistent in the approach that areasonable proportion has to be maintained between theseriousness of the crime and the punishment. While it is true thatDa sentence disproportionately severe should not be passed thatdoes not clothe the court with an option to award the sentencemanifestly inadequate. Justice demands that courts should imposepunishment befitting the crime so that the courts reflect publicabhorrence of the crime.”

15. In Sevaka Perumal and another v. State of Tamil Nadu(1991) 3 SCC 471, it was held as under:-

“10. ……undue sympathy to impose inadequate sentence woulddo more harm to the justice system to undermine the publicconfidence in the efficacy of law and society could not long endureunder serious threats. If the courts did not protect the injured, theinjured would then resort to private vengeance. It is, therefore,the duty of every court to award proper sentence having regardto the nature of the offence and the manner in which it wasexecuted or committed etc.”

16. Considering the nature of the injuries caused to PW-6-Chandrakant and PW-7-Suryakant and the facts and circumstances ofthe case, the trial court convicted accused No.1-Devraj under Section307 read with Section 34 IPC and sentenced him seven years rigorousimprisonment with fine of Rs.15,000/-. When the trial court has

exercised its discretion in imposing seven years of sentence ofimprisonment, the High Court ought to have kept in view the weaponused by accused No.1 and the nature of injuries caused to PW-6-Chandrakant and the opinion of the Doctor. The courts must not onlykeep in view the right of the accused, but must also keep in view theinterest of the victim and society at large. The courts have been consistentin approach that reasonable proportion has to be maintained betweenthe gravity of the offence and the punishment. While it is true that thesentence imposed upon the accused should not be harsh, inadequacy ofsentence may lead to sufferance of the victim and the community atlarge. So far as the first accused-Devraj is concerned, the High Courtwas not right in reducing the sentence of imprisonment imposed uponfirst accused. As pointed out earlier, the High Court reduced the sentenceof imprisonment from seven years to five years and increased the fineamount to Rs.25,000/- and part of the said fine amount was ordered tobe paid as compensation to the injured PW-6-Chandrakant and PW-7-Suryakant. Since the enhanced compensation was paid by accusedNo.1 which is said to have been withdrawn by injured-victims, forconviction under Section 307 read with Section 34 IPC, the firstaccused-Devraj shall undergo rigorous imprisonment for six years andsix months.

17. So far as respondent Nos.3 and 4-accused Nos.2 and 3 areconcerned, at the time of occurrence, they were not armed. AccusedNos.2 and 3 are alleged to have attacked the injured with fist and kickedand with sticks. Considering the facts and circumstances of the caseand the evidence on record, we are not inclined to interfere with theacquittal of accused Nos.2 and 3 under Section 307 read with Section34 IPC. So far as conviction under Section 323 read with Section 34IPC, the High Court took into consideration that accused No.2-Ashishwas nineteen years old at the time of occurrence and accused No.3-Balaji was thirty-eight years old and keeping in view their age and familycircumstances and that they were not having criminal antecedents, theHigh Court thought fit to reduce the sentence of imprisonment from sixmonths to the period already undergone by them. Since accused Nos.2and 3 were not armed with the deadly weapons, we are not inclined tointerfere with their acquittal under Section 307 read with Section 34 IPCand the reduction of sentence of imprisonment under Section 326 readwith Section 34 IPC.

[2019] 10 S.C.R.

A18. In the result, the impugned judgment of the High Court dated12.07.2018 in Criminal Appeal No.11 of 2016 is set aside. For convictionunder Section 307 read with Section 34 IPC, the second respondent-accused No.1-Devraj is sentenced to undergo rigorous imprisonmentfor six years and six months and the appeal is partly allowed. The acquittalof respondent Nos.3 and 4-accused Nos.2 and 3 under Section 307 readBwith Section 34 IPC is affirmed and the judgment of the High Courtconvicting them under Section 326 IPC read with Section 34 IPC andreducing the sentence of imprisonment imposed upon accused No.2 and3 to the period already undergone is also affirmed and the appeal quarespondent Nos.3 and 4-accused Nos.2 and 3 is dismissed. So far asCthe fine amount imposed upon the accused and the direction of the HighCourt to pay the compensation to the injured under Section 357 Cr.P.C.is maintained.

19. The accused No.1-Devraj is directed to surrender within fourweeks from today to serve the remaining sentence failing which, heDshall be taken into custody.

Ankit Gyan

Appeal partly allowed.