MP 1 APPA967_11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1028 OF 2011 WITH CRIMINAL BAIL APPLICATION NO.967 OF 2011 Vijay Nathuram Jadhav Age-27 years, residing at Akale, Tal. Chiplun, Vahal, Dist. Ratnagiri At present in Central Prison Nashik Road ... Applicant Versus The State of Maharashtra (through Chiplun Police Station, Dist. Ratnagiri) ... Respondent Mr. Aniket Vagal, Advocate for the Applicant. Ms P. P. Shinde, APP for the Respondent State. CORAM : J. H. BHATIA, J. DATE : 18TH OCTOBER 2011 ORAL JUDGMENT : Heard. Appeal be registered. 2. The accused appellant has preferred this appeal against the order passed by the Additional Sessions Judge, Khed (Mr. T. M. Lalwani) in Sessions Case No.01 of 2004 whereby the accused was convicted for the offences under Section 307 and 506(II) of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for ten years with fine of Rs.5,000/- and rigorous imprisonment for five years with fine of Rs.3,000/- respectively. He was also convicted for the offence punishable under Section 3 r/w. Section 25 of the Arms Act and was sentenced to undergo rigorous imprisonment for five years with fine of Rs.3,000/-. MP 2 APPA967_11 3. The learned Counsel for the accused / appellant, at the outset, made a statement that he would not press the appeal against the order of conviction on merits but would urge that the sentence awarded by the trial Court on the different counts, is excessive and also illegal, and therefore needs to be modified. As the learned Counsel for the appellant seeks to press the appeal only on the point of sentence, the appeal is taken up immediately with consent of the learned Counsel for the parties. Appeal admitted. 4. The prosecution case, in brief, is that one Mangal, daughter of P.W.1 Shankar resident of Pimpli Khurd, was married to the accused. The accused is a resident of village Kadvai. He was already married previously. He was working as a peon in the High School at Wahal. P.W.1 Shankar himself and his wife used to live at the house of his father-in-law. The accused used to take his wife Mangal to village Wahal from time to time, and sometimes she used to reside with her parents. The accused went to the house of his father-in-law Shankar and asked him to send Mangal with him to village Wahal. However, as there were holidays, P.W.1 Shankar asked the accused to allow Mangal to stay with parents during the vacation. Because of this, some verbal dispute took place between the accused and his father-in-law on 11.05.2003. On that day, the accused threatened his father-in-law to see him if he would not send Mangal with him. On that day, the accused also stayed at the house of his father-in-law. On 12.05.2003, at about 9.00 a.m., the accused left the house of his father-in-law Shankar after taking amount of Rs. 100/- from his mother-in- law Shevanti. At that time the accused was angry. At about 7.00 p.m. he came back and asked his wife to be prepared to go along with him. Then again the accused went away and came back at about 11.00 p.m., and at that time he was having a country-made shotgun and a battery. At that time, his father-in-law Shankar was taking rest in front of the house. The accused threatened to kill Shankar and fired from the said shotgun from the distance of about 15 to 20 feet. Three pellets from the shotgun hit the right shoulder of Shankar causing MP 3 APPA967_11 injuries to him. Similarly, one Baba Nanu Nikam, who is the father-in-law of P.W.1 Shankar, also sustained injuries on head and shoulder with the pellets of the shotgun. After the incident, the accused ran away. P.W.1 Shankar and Baba Nikam were taken to primary health centre where they were given treatment and the pellets were removed. On the report lodged by P.W.1 Shankar, Crime No.55 of 2003 came to be registered at Chiplun Police Station for the offences punishable under Sections 307 and 506 of the Indian Penal Code and under Section 3 r/w. Section 25(1)(A) of the Arms Act. 5. The accused came to be arrested on 14.05.2003. After investigation, charge-sheet was filed against him. The case was committed to Court of Sessions. The charges, as stated above, came to be framed. Accused pleaded not guilty. Relying on the testimony of the prosecution witnesses and the documentary evidence, the trial Court held that all the charges were proved against the accused and he was convicted and sentenced, as stated above. 6. As the learned Counsel for the accused appellant does not challenge conviction of the accused for the different offences, it is necessary to deal with the question as to whether the sentence awarded by the trial Court for the said offences was justified. Beginning with the offence under Section 3 r/w. Section 25 of the Arms Act, it appears that the learned Trial Court did not even bother to read the provisions of Section 25 carefully before awarding the sentence of imprisonment for five years. Section 3(1) prohibits anybody from acquiring or having in possession or carrying any firearm or ammunition without a licence. Section 25 provides punishment for the contravention of different provisions of the Arms Act, and different sub-sections of Section 25 deal with the contravention of those provisions and provide different sentences. Section 25(1B)(a) provides that whoever acquires or has in his possession or carries any firearm or ammunition in contravention of Section 3, shall be punishable with imprisonment for a term which shall not be less than one year MP 4 APPA967_11 but which may extend to three years and shall also be liable to fine. Thus, for the contravention of Section 3 maximum sentence, which could be awarded, was rigorous imprisonment for three years and minimum could be one year. However, in this case, the learned Additional Sessions Judge awarded rigorous imprisonment for five years with fine of Rs.3,000/- for the offence under Section 3 r/w. Section 25 of the Arms Act. Hence, the sentence of imprisonment of five years for the offence under Section 3 r/w. Section 25 of the Arms Act is clearly illegal, and therefore, it needs to be modified. 7. Taking into consideration the facts and the circumstances in which the incident had occurred, it clearly shows that some minor dispute had taken place between the accused and his father-in-law only because the accused was insisting his wife to accompany him to his village, while his father-in-law was insisting that she should stay at her parents' place during Summer vacation. Because of that the accused got angry. It appears that he procured a country- made shotgun from somebody and fired at his father-in-law Shankar. Three pellets hit the right shoulder of his father-in-law causing some bleeding injuries. Similarly, some pellets also hit father-in-law of Shankar causing injuries on his head and shoulder. Medical report shows that the injuries were not deep. Taking into consideration the nature of weapon from which only the pellets are shot, the possibility of causing death of a person was negligible. The threats were also given at the time of firing with the said firearm. In my opinion, the sentence of rigorous imprisonment of ten years for the offence under Section 307 and the rigorous imprisonment of five years for the offence under Section 506 (II) was excessive and not proportionate to the offence committed. 8. The record reveals that the accused was arrested on 14.05.2003 and was granted bail on 20.10.2005, and thus, he was in custody as under-trial prisoner for two years, five months and six days. Thereafter, he was arrested under MP 5 APPA967_11 non-bailable warrant on 29.12.2008 and since then, he was continuously in jail till the date of the impugned order of conviction, and after the conviction also he continues to be in jail till this date. That period comes to two years, nine months and twenty days. Thus, he has actually been in jail for a total period of five years, two months and twenty-six days. He is also entitled to some remission as per the Rules. 9. Taking into consideration the facts and circumstances of the case, the appeal deserves to be allowed and the sentence needs to be reduced. 10. Therefore, the appeal is partly allowed. While the conviction of the accused for the offence under Section 307 and 506(II) of the Indian Penal Code and also under Section 3 r/w. Section 25(1B) of the Arms Act is hereby maintained, the sentences stand modified thus, (a) For the offence punishable under Section 307 of the Indian Penal Code, the accused Vijay Nathuram Jadhav is sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.1,000/-, and in default to pay fine to undergo further rigorous imprisonment for two months; (b) For the offence punishable under Section 506(II) of the Indian Penal Code, the accused is sentenced to undergo rigorous imprisonment for two years; (c) For the offence punishable under Section 3 r/w. Section 25(1B) of the Arms Act, the accused is sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/-, and in default to pay fine to undergo further rigorous imprisonment for two months. 11. Substantive sentences of imprisonment on all the counts shall run concurrently. MP 6 APPA967_11 12. Appeal stands disposed of accordingly. 13. As the appeal itself is finally disposed of, the application No.967 of 2011 does not survive and stands disposed of accordingly. (J. H. BHATIA, J)