Page: HC230JUDGMENT
Para 1 & 2 - facts - omitted
3. The facts which led to this prosecution need narration. P.W.1, Frederick Kanakaraj, at the relevant time, when this incident had occurred, was working as District Munsif at Ponneri. On every working day he used to leave his residence at Kilpauk, Madras, on his motor cycle and reach the Central Railway Station. After parking his motor cycle at the Central Railway Station stand for motor cycles, he used to take an electric train to reach Ponneri. He had obtained permission from this Court, to stay at Madras and go for his work at Ponneri, daily. Ex.P-1 is such permission dated 5-7-1984. Every day he used to board the electric train leaving Madras Central Railway Station at 8.25 A.M On the fateful day i.e, on 25-4-1986, after parking his motor cycle, he was unable to board the electric train which left Madras at 8.25 A.M and, therefore, had to necessarily take the next train, which left at 9.05 A.M.P.W.1 boarded the first class compartment in which he was authorised to travel by virtue of the season ticket. Ex.P-3 is the identification card with the photograph of P.W.1 Ex.P-4 is the token-cum-pass issued at the Central Railway Cycle Stand, for the parking of the motor cycle of P.W.1, daily. Along with P.W.1, P.W.2, Ravichandran, an Engineer working in the Public works Department at Gummudipundi and two policemen of whom one has been examined as P.W.17, travelled in the same compartment. The appellant was known to P.W.1 earlier. The appellant had filed a redelivery petition in E.A.No.384 of 1984 in R.C.O.P.No.34 of 1982 on the file of the Court of the District Munsif, Ponneri. The appellant was known to P.W.1, since he had deposed before him in the aforementioned proceeding. The appellant was a tenant in the premises which was the subject matter of dispute in R.C.O.P.No.34 of 1982 R.C.O.P.No.34 of 1982 related to the eviction of the appellant from the said building. The predecessor of P.W.1, Thiru Joseph, not examined, had ordered eviction of the appellant and directed execution as well. In pursuance of the eviction order in R.C.O.P.No.34 of 1982, P.W.15, the Court Amin, had put the landlord of the premises in possession, after evicting the appellant. The appellant had thereafter filed E.A No.384 of 1984 for re-delivery, which petition was taken up for hearing by P.W.1, who, after examining the witnesses, dismissed the application on 7.2.1986 Nearly 2-1/2 months thereafter, when P.W.1 was travelling on 25.4.1986 in the electric train, he was as usual perusing the morning newspaper, inside the compartment. He was seated adjacent to the window. P.W.2 was seated opposite to him. P.W.17, and another constable were also seated in the row, opposite to P.W.1 The train had reached the Ennore Railway Station at or about 9.35 A.M, at that time the appellant got into the first class compartment, where P.W.1 was seated, with a small brief case and stood near the entrance to the compartment. The appellant wished P.W.1 which was reciprocated by the latter. Subsequently the apellant neared the place where P.W.1 was seated and suddenly, unexpected by P.W.1, opened the brief case, removed a koduval and stating “you have written a judgment against me. I will make you write no more judgements”, forcibly aimed a cut on P.W.1 The cut landed on the luggage wire mesh and fell on the back of the head of P.W.1 on receipt of the first cut, was shocked and perplexed, while the appellant cut him over again twice or thrice, which cuts also fell on the front and back of the head of P.W.1, after initial obstruction by the wire mesh. When P.W.2 and the police constables, who were in the compartment, attempted to restrain the appellant, he threatened them with his koduval. The frightened P.W.1, taking advantage of this little interregnum, when P.Ws 2 and 17 were restraining the appellant, got down from the first class compartment, to save himself, and ran towards the room of the station master at Ennore Railway Station. The appellant got down from the compartment, chased P.W.1, and attempted to cut with the koduval, on the back of his head of P.W.1 When P.W.1 warded of the cut, it fell onPage: HC231the left hand between the palm and the thumb, resulting in a bleeding injury. At that time the room of the station master was found locked, The astonished P.W.1 turned round to escape from the clutches of the appellant. Even then, the appellant chased and the next cut aimed by the appellant fell on the right hand of P.W.1, between the thumb and the index finger. P.W.1 further ran and got into a second class compartment the appellant, who followed P.W.1 also got into the Second class compartment and again attacked P.W.1 with the koduval. P.W.1 attempted to ward off the cuts and in the process sustained injuries in the left and right hands. The right ring finger and half of the little finger were precariously hanging due to the cut injuries ifllcted by the appellant. The public who were aghast and who had crumbled away, re-gathered and one of them threw a water drum at the appellant and another beat him with an iron rod. Due to the beating with the iron rod, the koduval held by the appellant fell down. Later several members of the public beat the appellant. Soon thereafter P.W.3, Jayapalan, the Judicial Second Class Magistrate, Ponneri, P.W.4, Rosiah, the Sub-Divisional Judicial Magistrate, Ponneri, P.W.5 Munirathinam, the Assistant Public Porsecutor, Ponneri and P.W.6, Susairaj, and an Advocate Formally practising at Ponneri and Susheela, not examined, an Examiner in the Court of P.W.1, helped P.W.1 to alight from the second class compartment. They boarded him in a tricycle, to take him to the Ennore Police Station. On the way, P.W.21, the Sub Inspector of Police, Ennore, came in a minibus. He stopped the bus and put P.W.1 in the mini bus, along with P.W.s 3, 4 and 5 to be taken to the Government General Hospital, Madras, for treatment.
4. P.W.17, Rathinaswamy, a constable attached to the Railway Protection Force, Madras Central Railway Station, who was travelling along with another Railway Reserve Constable 209 in the compartment in which P.W.1 was travelling, had witnessed the attack on P.W.1 by the apellant, after the latter had uttered the challenging words incorporated earlier in this judgment. He has also spoken about the threat adminstered by the appellant, when he and others attempted to restrain him. P.W.17 noticed P.W.1 running towards the room of the station master and the appellant chasing him. Regarding this incident, P.W.17 informed the Inspector of Police, Central Railway Station, over the telephone. Meanwhile, the public apprehended the appellant and had kept him in the platform, opposite to the waiting room. He had also noticed P.Ws 3, 4 and 5 taking to P.W.1 out of the Railway Station.
5. P.Ws 3 to 5 had P.W.1 admitted at the General Hospital, Madras, for treatment, P.W.19 Dr. Rathinaswamy was working as a Casuality Medical Officer, on 25.4.1986, at the Goernment General Hospital. He examined at 10.30 A.M the injured P.W.1, who was alleged to have been attacked by a known person with knife at Ennore Railway Station at about 9.35 A.M on the same day. The injuries noticed by him on P.W.1, have been noted in Ex.P.26, the accident register, which is typed hereunder:-
1. Incised wound over the left elbow on the outer aspect exposing the bone 12 C.M × 5 CM.
2. Incised wound in the first web space of right hand upto metacarpus joint 3”.
Right little and ring fingers served at distal phalanx level and loss of part of nail of the mid Finger.
3. Incised wound over the left fronto parietal region 6” Bone deep.
4. 3 incised wounds over left occipital region crossing each other, like H 5” each.
5. Two incised wounds over right occipital region extending upto right ear of 6”× 3”.
6. Incised wound over posterior aspect of right arm exposing triceps 3”× 1” near the elbow upto bone.
Abrasion over the abdoninal wall.
7. Left hand incised wound over the hypothenar eminence 2” disital palmer crease 2” thumb 7 cm. wound over the dorsal and outer border. Left index ulnar aspect 2” mid finger over tip. 1” left forearm on dorsum 1”.
P.W.19 had expressed his opinion that all the injuries found on P.W.1, wound have been caused at the time and in the manner alleged, by Page: HC232a single sharp edged weapon, like M.O.2 He also opined, that the head injuries noticed by him, would have endangered the life of the person, if immediate and proper treatment had not been given.
Para-6 to 16-facts-omitted.
17. The apellant, when questioned by the trial Court under section 313 of the Criminal Procdure Code, denied his complicity in the crime. He stated that the prosecution witness had uttered false hood. P.W.15 had dispossessed him contrary to the order of interim stay obtained by him. The motor cycle and the articles seized by the police along with the brief case belonged to him; but they were taken away from his house. He was beaten under a wrong assumption. He admitted having been sent to Stanley Medical Hospital for treatment and his remand to the judicial custody thereafter. He has further stated that the police had beaten him and he was innocent. Though initially he represented that he had witnesses to be examined on his side, later he gave up that stand. However, he had marked Exs D-1 and D-2.
18. The learned trial Judge, on an appreciation of the oral and documentary evidence, found the apellant guilty of all the three charges and dealt with him as stated earlier.
19. The only point which deserves consideration in this appeal, is whether the prosecution has established the guilt of the appellant beyond reasonable doubt?
Para-20 to 22-facts-omitted.
23. Before entering into a detailed discussion on the inherent merits of the prosecution case, it would be better to initially dispose of the argument relating to lack of jurisdiction of the trial Judge in having imposed 1 ½ years imprisonment totally, 1 ½ years over and above the substantive sentence of 10 years awarded.
24. Section 63 of the Indian Penal Code reads that where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. Section 64 of the Indian Penal Code refers to sentence of imprisonment for non payment of fine. (Section-Reproduced-Omitted.)
It is apparent that the default imprisonment, would be in excess of any other imprisonment to which the person may have been sentenced or to which he may be liable under a commutation of sentence.
25. Turning to the relevant provisions of the Criminal Procedure Code, section 28(3) provides, that an Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years. Therefore, the Assistant Sessions Judge will be competent, to sentence an accused to undergo imprisonment for ten years. That is exactly what the trial Judge had done in this case, while sentencing the appellant to undergo ten years rigorous imprisonment under charge 2 framed for an offence under section 307 I.P.C
26. Section 30 of the Criminal Procedure Code refers to sentence of imprisonment in default of fine. (Section Reproduced-Omitted.)
A reading of the section makes it clear, that the provisions contained therein are applicable only to Magsitrates and not the other Courts. This is quite in consonance with section 29 of the code, which deals with sentences which a Magistrate may pass. Section 29 of the Criminal Procedure Code prescribes, the maximum limit of fine, apart from the sentence of imprisonment, the various classes of Magistrate can impose. As far as the Chief Judicial Magistrate and the Chief Metroplitan Magistrate are concerned, the maximum sentence of fine had not been prescribed, thereby implying that they have powers to award the sentence of fine without limit, as in the case of the Courts contemplated in section 28 of the Criminal Procedure Code. Section 31(3) of the Criminal Procedure Code was specifically relied upon by the learned counsel for the appellant, to contend that for the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed againt him under that sec Page: HC233tion - should be deemed to be a single sentence and, therefore, it must be deemed that the appellant had been sentenced to 11 1/2years rigorous imprisonment, for the default sentence will run consecutively with the substantive sentence of imprisonment awarded. On this aspect, certain decisions were placed before me.
27. A Full Bench of this Court in Reg. v. Muhammad Saib and another (I.L.R.1 Madras 277) held that the Cantonment Magistrate, who had imposed a sentence of fine of Rs. 25/- each on two persons convicted by him for committing an affray, an offence punishable under section 160 of the Indian Penal Code and sentenced to pay a fine of Rs. 25/- each, in default to undergo rigorous imprisonment, for 30 days, had not committed any illegality. Referring to section 309 of the then Criminal Procedure Code (corresponding to section 30(1)(a) of the present Code) the Full Bench took the view that where a person was sentenced to fine only, the Magistrate may award such term of imprisonment in default of payment of fine as is allowed by law, provided the amount does not exceed the Magistrate's power under the Act. It was also stated in ruling that it apeared to the High Court that the proper construction of this clause was as follows:-
“If imprisonment and fine, and further imprisonment in default of payment of fine is the sentence, the imprisonment in default cannot exceed one-fourth of the period of imprisonment which the Magistrate is competent to inflict for the offence, but if the sentence is fine only, the imprisonment in default of payment may be the whole period of imprisonment which the Magistrate is competent to inflict for the offence.”
However, a Full Bench of the Allahabad High Court in the Empress of India v. Darba and others (I.L.R.1 Allahabad 461) differed from the Madras view and held that in the case of canal offence, which was punishable with fine and imprisonment, the maximum period of imprisonment in default of payment of fine allowed by law was one-fourth of one month, and if the Magistrate punished an offender for such an offence with fine only, he could award, in default of payment of the fine, no longer term. In that case the accused were convicted for an offence under section 70 of the Northern Indian Canal and Drainage Act. Act VIII of 1873, and sentenced to pay a fine, but the sentences of imprisonment awarded in default of payment of the fine inflicted were all in excess of one-fourth of the maximum period of imprisonment allowed by section 70 of the Act.
28. In a later Full Bench of this Court in Queen-Empress v. Venkatesagadu and Others (I.L.R.X Madras 165) this Court over ruled the earlier decision in Muhammad Saib's case (I.L.R.1 Madras 277). The Full Bench held that the construction adopted by the Allahabad High Court in the Empress of India v. Darba and others (I.L.R Allahabad 461) was a natural construction. In Venkatesagadu's case (I.L.R.X Madras 165) the Second Class Magistrate sentenced the accused to pay a fine of Rs. 10/- in default to suffer one month simple imprisonment for an offence under section 510 I.P.C Section 510 I.P.C provided punishment, which may extend to twenty-four hours simple imprisonment or with fine which may extend to Rs. 10/- or with both. This Court held that the sentence as it stood was illegal.
29. In re Kanda Moopan (A.I.R 1937 Madras 406) Pandrang Row, J., held that order directing sentence of imprisonment in default of fines to run concurently was illegal.
30. To the same effect is the ruling of the Lahore High Court in Emperor v. Chanan Singh (A.I.R 1940 Lahore 388).
31. In Ram Jas v. State Of U.P (1974 Crl.L.J.1261) the Supreme Court construing Section 65 of the Indian Penal Code, held that if the conviction was altered by the appellate Court maintaining the sentence of fine, in the absence of direction as to imprisonment in lieu of fine, the period of imprisonment fixed by the trial Court in lieu of fine, had to be taken as impliedly affirmed. Such period if in excess of one-fourth of the maximum fixed for the offence, under altered conviction, it would be illegal.
32. In Chhajulal. v. State Of Rajasthan. (1972 Crl.L.J 1184) the Supreme Court, while dealingPage: HC234with sections 32 and 33 of the Criminal Procedure Code and Section 65 of the Indian Penal Code, held that Section 65 of the Indian Penal Code only fixed a maximum period of imprisonment which could be awarded for default of payment of fine, whenever any court convicted. On the other hand, Section 33 of the Criminal Procedure Code governed specifically the powers of the Magistrates on this matter. A Magistrate cannot award imprisonment by resorting to Section 65 of the Indian Penal Code, because his powers for awarding imprisonment are limited by Section 32 of the Criminal Procedure Code. Sections 32 and 33 of the Criminal Procedure Code will have to be read together.
33. In Emperor v. Mitho Maroo Machi (A.I.R 1942 Sind 80) a Division Bench, dealing with Section 35 of the Criminal Procedure Code and Section 64 of the Indian Penal Code, held that if substantive sentence of imprisonment with fine was imposed, the sentence in default of payment of fine must be consecutive to the substantive sentence of imprisonment.
34. All these cases do not support the contention raised by the learned counsel for the appellant, since they concerned themselves with the quantum of default sentenced, that could be imposed. There is no dispute that the default sentence imposed by the trial Judge, is within his powers for the respective offences for which the sentence of fine had been imposed, apart from imprisonment.
35. It cannot be overlooked, that the term of imprisonment in default of payment of fine, cannot be deemed to be a sentence, but a penalty, which is incurred on account of non-payment of fine. A sentence is something which must be undergone unless it is remitted in part or in whole, on appeal or otherwise. When, however, a term of imprisonment is imposed in default of payment of fine, the accused may always avoid it, by paying the fine. In such a case, of sentence of fine, the imprisonment in default is merely a penalty for non-payment of fine. Therefore the imprisonment awarded in the event of default of payment of fine, cannot be added up to the substantive sentence of imprisonment to negative the jurisdiction of the trial Judge and contend that 11 1/2 years rigorous imprisonment had been awarded. Section 31 (2) of the Criminal Procedure Code, will also be relevant. It reads, that in the case of consecutive sentences, it shall not be neceswsary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court, provided in no case such person shall be sentenced to imprisonment for a longer period than fourteen years and the aggregate punishment did not exceed twice the amount of punishment, which the court was competent to inflict for a single offence.
36. Section 30 of the Criminal Procedure Code makes section 64 and 65 of the Indian Penal Code applicable not only to offences punishable under the Penal Code, but to offences punishasble under any law in force for the time being. Section 30 does not extend the period of imprisonment which may be awarded under Section 65 of the Indian Penal Code, otherwise they would not be confined to Magistrates, but would be extended to all Criminal Courts. The provisions were enacted to regulate the proceedings of the Magistrates whose powers are limited.
Para-37 to 48-facts-omitted.
49. The first information report is a well-known technical description of a report, under section 154 of the Criminal Procedure Code, giving the earliest information of a cognizable crime. When the information which is first given to the police is vague or indefinite, it cannot be treated as one given under section 154 of the Criminal Procedure Code. Whether a particular information, would constitute F.I.R, will always Page: HC235be a question of fact, depending upon the circumstances of each case. A telephonic information received at the police station, need not in all circumstances be deemed to be the first information and when no formal investigation is commenced upon such an information, it cannot be held to be an information under section 154 of the Criminal Procedure Code, and a statement recorded by the police till the commenced investigation does not attract section 161 of the Criminal Procedure Code.
Para-50-facts-omitted.
51. To postulate an offence under section 452 of the Indian Penal Code, it has to be established:
(a) That the accused committed house trespass;
(b) That the same was committed after making preparation for causing hurt to, or for assaulting or for wrongfuly restraining, some person, or for putting some person in fear of hurt, or of assault, or of wrongful restraint.
The House trespass itself, has been defined in Section 442 of the Indian Penal Code. A person, who commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for custody of property, is said to commit “house-tresspass.” Criminal trespass would be complete if a person enters into or upon the property in the possession of another with intent to commit an offence or to intimate, insult or annoy any person in poasession of such property. Criminal trespass will also take in its fold, lawful entry into or upon such property, but unlawful remaining therein, with the aforesaid mens rea. Trespass into property, which it is so desirable to guard against unlawful incrusion, as the habitation in which men reside and the building in which they keep their goods is designated as an aggravated form of a criminal trespass. The word ‘vessel’ has been defined in Section 48 of the Indian Penal Code to denote anything made for the conveyance by water of human beings or of property. The train compartment in which P.W.1 was travelling is neither a building, tent or vessel used as a human dwelling place or a place for worship or a place used for the custody of property. It cannot also be stated that the train compartment was the property in the possession of P.W.1, to attract the ingredients of this offence. The learned Additional Prosecutor would submit that P.W.1, a first class pass holder had a legitimate right to travel in the compartment and the appellant, who entered into the compartment must be deemed to have trespassed, since his mens rea was to attack P.W.1 Apart from there being no evidence as to whether the appellant did possess a season ticket or a train ticket to travel in the first class compartment, I am unable to hold that the first class compartment, was the property in the possession of P.W.1, who had only a right to travel and that property could be christened as a building, tent or vessel used as a human building, place for worship or a place for custody of property. Therefore, the conviction of the appellant under section 452 of the Indian Penal Code cannot be sustained and he has to be necessarily acquitted of that charge. The conviction and sentence imposed on the appellant on charge No.1 is, therefore, set aside and he is acquitted of that charge.
52. The offence under section 333 of the Indian Penal Code to my mind, has been established beyond doubt. The learned counsel for the appellant had placed before me two decisions to canvass the proposition, that on facts, the offence under section 333 of the Indian Penal Code does not get attracted.
53. In Dchattaiah v. State of A.P (1978 Crl.L.J.1473) the Supreme Court, while considering a charge under second part of section 332 I.P.C, held that the intent to prevent or deter a public servant from discharging his duties as such public servant was an essential ingredient of the charge under the second part of section 332 I.P.C Where the facts disclose that a public servant was assaulted while in office, as a sequel of an earlier private quarrel and the assault had no real nexus or casual connection, or consequential relation with the performance of the public servant's duty as public servant, the accused could not be charged and convicted under Page: HC236Section 332, I.P.C That was a case in which the complainant was a typist in a Panchayat. In the same office the accused was working as Health Inspector Lower Division Clerk and Health Worker, respectively. The first information report did not disclose that the incident was the outcome of anything connected with the performace of the complainant's duty as public servant. There was not even an obliquitous allegation, suggesting that he was assaulted with intent to prevent or deter him from doing his official duty.
54. In Suresh Narayan Roy… v. State Of Arunachal Pradesh…. (1978 Crl.L.J.1514) the Gauhati High Court, while considering the commission of an offence under section 353 I.P.C, held on facts that the assault on the public servant, was not committed in consequence of anything done or attempted to be done as a public servant, but was due to personal grudge against him.
55. To constitute an offence under section 333 I.P.C, it must be proved:
(1) that the accused voluntarily caused grievous hurt:;
(2) that person so hurt was a public servant; and
(3) that such public servant was then discharging his duty or that the accused did so with intent to prevent or detersuch public servant or any other public servant from discharging his duty, or the accused did so in consequence of something done or attempted to be done by such public servant, in the lawful discharge of his duty.
The first part of section 333 I.P.C cannot be attracted, since at the time when grievous hurt was caused to P.W.1, he was not discharging his public duty. The second part of section 333 I.P.C can come into operation, because the appellant must be deemed to be aware of P.W.1 travelling daily by electric train to reach Ponneri, to do his duty as a public servant, since he was at the relevant time, the District Munsif, Ponneri. The appellant by attacking P.W.1 in the train, while the latter was on his way to discharge his duty as a public servant, the intention to prevent or deter P.W.1 as contemplated in section 333 I.P.C can be deemed to have been spelt out. In any event, the third part of section 333 I.P.C is most certainly attracted, without any doubt whatsoever. The attack was in consequence of the judgment pronounced against the appellant, in the lawful discharge of his duty as a public servant by P.W.1 The evidence of P.Ws.1, 15 and 17 taken along with the words of challenge thrown by the appellant, while attacking P.W.1, would clearly attract the third part of section 333 I.P.C The two rulings aforementioned obviously, therefore, cannot apply to the facts of this case. The conviction for an offence under section 333 I.P.C imposed by the trial Court has to be necessarily confirmed.
56. The only charge, that remains for consideration related to the offence under section 307 I.P.C The evidence, to constitute an offence under section 307 of the Indian Penal Code, must disclose that the death of a human being was attempted and that death was attempted to be caused by or in consequence of the act of the accused and that such act was done with intention of causing death or that it was done with the intention of causing such bodily injury as the accused knew to be likely to cause death or was sufficident in the ordinary course of nature to cause death or that the accused had attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. To find person guilty of an offence under section 307 I.P.C actual injury on the victim may not be necessary. The totality of the circumstances will have to be taken note of by the Court to find out, if, on facts placed, an offence under sectin 307 I.P.C was attracted. The intention or knowledge of the accused, must be such as was necessary, to constitute murder. The nature of attack on the victim, coupled with the words uttered by the appellant, that the victim would not be allowed to live for writing any more judgments, clearly postulated, the mensrea on the part of the appellant to do away with P.W.1 I have no hesitation in holding that the trial Judge had rightly convicted the appellant for an offence under section 307 I.P.C
57. The sentence to be awarded to the appellant for the offences under section 333 I.P.C and section 307 of the Indian Penal Code; will have to be next considered. The stand taken by the defence and the prosecution has already been Page: HC237stated. The corelation between crime and punishment, has always been a subject of perennial problem. The question, that had agitated the Court, the criminologists and social scientists was whether the immediate aim of criminal law was to punish,. with the view to doer from repeating his conduct or reform him by suffering the pain of punishment. The society today has more or less eschewed retribution as an aim of punishment. Crime is now considered as a disease, a problem of social hygiene, in that the emphasis has moved from retribution to cure and reform and to reclaim the ailing member of the society, into the society itself. The modern approach to penology is that the sentence must inhere a humanitarian approach. This poses a complex problem requiring a compromise between reformation, deterrence and retribution. Disproportionately heavy sentence can be deemed arbitrary and at the same time too light a sentence bearing no proportion to the gravity of the offence charged, can bring the administration of criminal justice to ridicule. Soft sentencing justice, may even be gross injustice where many innocents are the potential victims.
58. The Supreme Court in Adamji Umar v. State of Bombay (A.I.R 1952 S.C 14) observed that the determination of the right measure of punishment was often a point of great difficulty and no hard and fast rule can be laid down, it being a matter of discretion which is to be guided by a variety of considerations, but the Court has always to bear in mind the necessity of the proportion between an offence and the penalty. In imposing a fine it was necessary to have as much regard to the pecuniary circumstances of the accused persons as to the character and magnitude of the offence, and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it, except, in exceptional cases.
59. Keeping the aforesaid principles in mind, let us turn to the facts in this appeal. There cannot be a discordant note, if it were to be stated, that the motivated appellant, had vindictively attacked a public servant, since the latter's judgment delivered in the course of his duty as a public servant, went against him or was not to his liking. Imposition of light sentence, would bring the administration of justice, into scorn. At the same time the need to confirm a stringent sentence of ten years rigorous imprisonment may still deserve, Diligent and careful scrutiny, the outcome of which must not only reflect firmness, but compassion as well. The trial Judge had taken note of the contents of a petition filed by the appellant on 20.8.1987 before the Assistant Sessions Judge, Trivellore, vowing vengeance against P.W.15, the police official and others for the injustice rendered to him on 17.4.1984, when P.W.1's predecessor had decided against him. A perusal of the records does not indicate, that while sentencing the accused this memo had been put to him to elicit an answer. The learned counsel for the appellant contended that the memo was not voluntary and there was a background, under which it was coerced from him. The appellant has expressed his repentance through his counsel, which I am unable to brush aside as an insignificant actor. It has also to be kept in mind, that the appellant had been released on bail after he was arrested on 25.4.1986 and the trial and the appeal has been conducted, while he continued to be incarcerated. The appellant has already spent about four years in jail. The appellant has also been acquitted of one count of charge, for an offence under section 452 I.P.C Taking all these factors into consideration, I am of the view, that the sentence of imprisonment awarded under charge No.2 for the offence under section 307 I.P.C could be reduced from 10 years rigorous imprisonment to 7 years rigorous imprisonment. The learned counsel for the appellant contended, that the appellant had not been in a position to pay the varying amounts of fine imposed on him. I don not think, that on facts any sentence of fine, has to be awarded. In that view, the sentences of fine imposed on the appellant under charges 2 and 3 years are set aside. The Page: HC238sentence of imprisonment under charge No.2 for an offence under section 307 I.P.C is reduced from 10 years rigorous imprisonment to 7 years rigorous imprisonment. In respect of charge No.1 for offence under section 452 I.P.C, the appelant is acquitted. In respect of the third charge for the offence under section 333 I.P.C, I confirm the sentence of 3 years rigorous imprisonment imposed by the trial Judge. The sentences in respect of charges 2 and 3 shall run concurrently.
60. The return of M.O 19, the Rajdoot Motorcycle bearing registration No.T.M.Z 615 admittedly belonging to the appellant, has been sought for, M.O.19 has been confiscated by the trial Court, to the State. There is no evidence to show, that M.O.19 has been used for commission of the crime. This fact is also conceded by the prosecution. I set aside the confiscation of M.O.19 and direct its return to the appellant. This appeal is partly allowed.