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State of Maharashtra Vs. Kishore Ramji Rokade - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 67 of 1979
Judge
Reported in1982(2)BomCR282
ActsIndian Penal Code (IPC), 1860 - Sections 307 and 332; Code of Criminal Procedure (CrPC) , 1973 - Sections 313, 377
AppellantState of Maharashtra
RespondentKishore Ramji Rokade
Appellant AdvocateV.V. Naik, A.G.P.
Respondent AdvocateV.S. Gupte, Adv.
DispositionAppeal dismissed
Excerpt:
.....awarded is grossly inadequate and in appropriate in the nature of the crime or the gravity of the crime or reduce the same if it is grossly exaggerated and harsh in proportion to the nature of the crime. 7. in the present case, the circumstances clearly go to show that the police inspector shinde who directed his police constables to go and arrest the accused persons acted in an over-enthusiastic manner inasmuch as he has not taken any steps to register any of the offence against the accused persons, nor has issued any warrant of arrest against them. it is true that the present respondent was factually in possession of a deadly weapon like rampuri knife......present respondent and vasanta-acquitted accused. it was the case of the prosecution that police head constable shabbirkha along with two other constables-digamber and ganesh were led by the said balu to a locality of akola known as najuknagar in the afternoon at 1 p.m. they were in a police car. the said balu located the two accused persons who were going in a cycle rickshaw. the police car was, therefore, stopped just near the rickshaw and head constable shabbirkha directed his two assistants digamber and ganesh to fetch the accused persons from the rickshaw. when the accused vasanta was brought towards the car while other accused kishor the present respondent refused to get down. it was noticed for this purpose that police constables digamber and ganesh went again towards the.....
Judgment:

S.W. Puranik, J.

1. This is an appeal preferred by the State for enhancement of the sentence imposed upon the respondent accused for his conviction under section 307 Indian Penal Code by the Assistant Sessions Judge, Akola, in Sessions Case No. 32/78 decided on 2-1-1979 whereby he only sentenced him to suffer rigorous imprisonment for two years and fine of Rs. 500/- in default R.I. for one year. The respondent was also convicted under section 332 Indian Penal Code and sentenced to R.I. for 6 months and fine of Rs. 200/- in default R.I. for 2 months while ordering both the sentences to run concurrently.

2. The brief facts of the prosecution case are that an offence of theft was registered at Ramdaspeth Police Station, Akola on 12-3-1978 and one Balu was arrested in that connection. The said Balu gave information to the Police Inspector Shinde about the connection of the present respondent Kishore to the said offence. The Police Inspector Shinde, therefore, directed H.C. Shabbirkha and two other Constables Digamber and Ganesh of the Detective Branch Squad to arrest the two persons viz. Kishore the present respondent and Vasanta-acquitted accused. It was the case of the prosecution that Police Head Constable Shabbirkha along with two other Constables-Digamber and Ganesh were led by the said Balu to a locality of Akola known as Najuknagar in the afternoon at 1 P.M. They were in a police car. The said Balu located the two accused persons who were going in a cycle rickshaw. The police car was, therefore, stopped just near the rickshaw and Head Constable Shabbirkha directed his two assistants Digamber and Ganesh to fetch the accused persons from the rickshaw. When the accused Vasanta was brought towards the car while other accused Kishor the present respondent refused to get down. It was noticed for this purpose that Police Constables Digamber and Ganesh went again towards the rickshaw to forcibly take out the accused Kishore from the rickshaw. A scuffle ensued there and accused Kishore took out a Rampuri knife from his pocket and started brandishing at the constable. Head Constable Shabbirkha noticing the commotion rushed to help Police Constables Digamber. The accused Kishore also assaulted Head Constable Shabbirkha and there was a stab injury caused on the stomach of Shabbirkha. However, they managed to caught hold of accused Kishore and his knife and both the accused persons located in that rickshaw were successfully brought into the police car and then to the Police Station.

3. At the Police Station at about 2 in the afternoon, Police Constable Ganesh lodged First Information Report (Ex. 15). Head Constable Shabbirkha who was seriously injured on the stomach was immediately removed to the hospital who was operated upon. The Police Constable Digamber had also sustained minor injuries and was medically examined. The knife from the possession of the accused which was snatched by Ganesh was also seized. Blood stained clothes of the injured were also seized and sent for chemical analysis. After investigation charge-sheet was put up before the Chief Judicial Magistrate who committed the same to the Court of Sessions. The Sessions Judge framed charges under sections 307 and 332 Indian Penal Code against the present respondent-accused No. 1, and against Vasanta accused No. 2 (acquitted). After recording evidence, the trial Court acquitted original accused No. 2 Vasanta but convicted the first accused-the present respondent as already stated above.

4. Shri V.V. Naik, the learned Assistant Government Pleader, appearing for the State-appellant, states that the question involves an assault by the accused upon a police party where a Head Constable was grievously wounded. It is contended that but for the timely medical help and operation, the injury caused on the abdomen of Head Constables Shabbirkha was fatal. The description of the injury as per the medical report shows that it was a stab wound, cavity deep on the lower part of the umbilical region where the length of the injury is 11/2' and width is 1' and the intestine were protuding. According to Shri Naik, it was a forcible and intentional stab given on the vital part by a deadly weapon like Rampuri knife and the offence of attempt to commit murder punishable under section 307 Indian Penal Code is clearly established against the accused. He also contended that the accused has not preferred any appeal against his conviction. He, therefore, urged that jail sentence of two years R.I. is disproportionately low compared to the nature and gravity of the offence.

5. Shri V.S. Gupte, Advocate (appointed) for the respondent urged that there are no special circumstances made out by the State appellant for enhancement of the sentence imposed upon the accused. He appointed out that the learned Sessions Judge in paragraph 22 of its judgment has given grounds for imposing the sentence of 2 years R.I. The learned Sessions Judge has not taken a lenient view of the matter even though requested for by the Counsel of the defendants at the trial. On the other hand, the learned Sessions Judge has held that the accused flashed out a knife and did not pause for a moment to assault the constable. The learned Sessions Judge further held that the force thus used by the accused was surely disproportionate in the circumstances of the case. He also rejected the submission of the defence for taking recourse to action under section 360 of Criminal Procedure Code and came to the conclusion that in the circumstances a sentence of imprisonment is quite necessary and that sentence extending to a period of 2 years will adequately meet the ends of justice.

6. Shri Naik for the State pursuaded this Court to go through the evidence of the witnesses as well as the reasoning of the learned Sessions Judge. It is seen that all the constables and Head Constables have given consistent version of the incident, and, therefore, the conviction of the appellant is justified and cannot be questioned. The only question before us is regarding the quantum of sentence and whether it needs enhancement. It is an established principle that granting of sentence is the exclusive discretion of the trial Court which conducts the case. It is only in exceptional circumstances that the sentence would be enhanced in appeal provided the Appellate Court is satisfied that the sentence awarded is grossly inadequate and in appropriate in the nature of the crime or the gravity of the crime or reduce the same if it is grossly exaggerated and harsh in proportion to the nature of the crime.

7. In the present case, the circumstances clearly go to show that the Police Inspector Shinde who directed his police constables to go and arrest the accused persons acted in an over-enthusiastic manner inasmuch as he has not taken any steps to register any of the offence against the accused persons, nor has issued any warrant of arrest against them. It is also brought out in evidence that the police party of Head Constable Shabbirkha and Constables Digamber and Ganesh which went with another accused Balu, were not in their police uniform at the material time. It is also to be noted that the respondent Kishore and his colleague Vasanta were actually going in a rickshaw and were suddenly accosted by the police party to come out under arrest to the Police Station. It is very likely that in the very nature of the circumstances, the accused may have felt offended and may have resisted his arrest by persons not in uniform. It is true that the present respondent was factually in possession of a deadly weapon like Rampuri knife. But that it by itself would not exaggerate the nature of the crime in which he has caused one stab injury on the person of Head Constable Shabbirkha. The accused in their statement under section 313 Criminal Procedure Code have also alluded to this fact that while they were going in a rickshaw there was some altercation going on with the rickshawala when the police personal came on the spot and were accidentally injured. Considering these aspects of the case, I do not think that any interference for purpose of enhancement of sentence is called for.

8. It was also pointed out to the Court that the incidence is of 12-3-1978. The accused was taken into custody on 13-3-1978. The Sessions case was decided on 2-1-1979 and the period of detention from 13-3-1978 to 2-1-1979 was ordered to be set off against the sentence of imprisonment. The total punishment which was to run concurrently was for a period of two years. Thus, by October, 1980 the respondent has completed his period of sentence and must have been released from jail custody. The circumstances of the case are not such that the accused at this stage should be re-arrested and asked to suffer further sentence of enhancement. Under these circumstance, I find that there is no substance in the present appeal and the same is liable to be dismissed.

9. Criminal Appeal No. 67/79 is dismissed.


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