1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPEAL NO.53 OF 2005. APPELLANT: The State of Maharashtra, Through Police Station Officer, Warora, Dist. Chandrapur. -VERSUS- RESPONDENTS: 1 Sanjay S/o Annaji Nikhade, aged about 25 years, Occ:Mason, resident of Malviya Ward, Warora, Distt. Chandrapur. 2 Mohan Bhaurao Shambalkar, aged about 20 years, Occ: Panthela, resident of Colliery Ward, Warora, District Chandrapur. 3 Sou. Ganga alias Puja W/o Shyam Shambalkar, aged about 20 years, Occ:Household, resident of Colliery Ward, Warora, District Chandrapur. Mr. M. J. Khan, APP for the appellant – State. Mr. S. V. Sirpurkar Advocate for respondent nos.1 to 3. CORAM: A. H. JOSHI AND U.V. BAKRE, JJ. DATED: 1st AUGUST 2011. ORAL JUDGMENT : (Per A. H. Joshi J) 1. This is a State Appeal. 2. Heard both sides. 3. The accused were tried for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 4. The learned Sessions Judge, Chandrapur, convicted the accused under Section 304 Part-II read with Section 34 of the 2 Indian Penal Code. The accused No.1 was sentenced to suffer Simple Imprisonment for 2 years and was set free by granting set off under Section 428 of Criminal Procedure Code. The accused Nos.2 & 3 though convicted were granted probation for three years with a condition of bond for good behaviour. 5. The State is aggrieved by the sentence against the accused no.1 and grant of probation to the accused nos.2 & 3. 6. Heard learned APP and perused the record. 7. We had called upon the learned APP to address the Court on the following points. (a) To point out the gravity of circumstances due to which sentence for two years for the offence punishable under Section 304 Part-II, was inadequate. (b) The circumstances in which the accused nos.2 & 3 who were of the age of 20 on the date of lodgement of First Information Report were not entitled for availing benefit of probation. (c) How could the accused Nos.2 & 3 be called to hear sentence after 8 years from award of probation in absence of any material adverse to their interest. 8. Learned APP has urged in favour of theory of deterrence and wanted the sentence to be modified. He has further urged that the learned Sessions Judge has not discussed as to why leniency and award of sentence only after 2 years could 3 be adequate. In so far as the aspect of grant of probation is concerned, learned APP has urged that the Judgment does not indicate that any report of Probation Officer was called before awarding probation. 9. The learned Advocate for the defence has submitted in reply that: (a) The prosecution has failed to prove any preparation to commit murder or any serious offence. (b) It was adequately borne on record that the incident occurred in a fraction of movement and was a product of heat which was generated between the parties. (c) The accused persons did not have criminal antecedents and young age of the accused no.2 and 3 entitle them for probation. (d) The fact that the report of Probation Officer was not called, and that could not be a fault attributable to the accused. (e) The accused Nos.2 & 3 have completed the period of bond and the prosecution has not come forward with a plea that they have misconducted and could otherwise be liable for being called to hear the sentence. 10. We have perused the record, and we find that once the case falls in Part-II of Section 304 of the Indian Penal Code, by the said very fact, the gravity of offence is proved to be diluted. 11. The theory of deterrence always has a later 4 preference. Deterrence is an object which is always expected more than achieved. Success of deterrence depends more on the mind of the guilty person than those who are keen to award it. The deterrence is, therefore, more in the thought level than its achievement. 12. We are, therefore, not influenced by the argument of deterrence as an object of punishment. It is a theory which ought not to be forgotten, however, cannot be remembered as an imperative or unavoidable rule for enforcement. 13. We are, therefore, not in favour of being guided by the theory of deterrence as sole motive of sentence in criminal law. 14. We, therefore, find no substance in the submissions of the learned APP that in order to achieve the deterrence, the sentence needs to be enhanced. 15. In so far as the aspect of award of probation is concerned, the challenge has outlived its purpose, rather the award of probation has achieved the desired results i.e. behaviour which could not be objected by the State. 16. In the given situation, we are satisfied that the State appeal does not merit interference and is dismissed. JUDGE JUDGE //MULEY// 5