AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.205 OF 2008 Siddesh Anil Shirsat, age 21 years, residing at Talebazar, House No.65, Taluka Deogad, Dist. Sindhudurg, (now confined at Kolhapur Central Prison, Kolhapur). ) ) ) ) ) .... Appellant Versus The State of Maharashtra (At the instance of Police Inspector, Sawantwadi Police Station, Dist. Sindhudurg, vide C.R. No.01 of 2006). ) ) ) ) ) .... Respondents Mr. N.N. Gawankar with Mr. Arfan Sait for the appellant. Ms. P.H. Kantharia, A.P.P. for the State. CORAM : SMT. RANJANA DESAI & DR. D.Y. CHANDRACHUD, JJ. DATED : 11TH SEPTEMBER, 2008. ORAL JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. By consent of the parties, added to final hearing board and taken up for final hearing forthwith. AJN 2 2. The appellant was tried in the court of Additional Sessions Judge, Sindhudurg for offence punishable under section 302 of the Indian Penal Code (for short, “the IPC”) for having caused death of Vanjakshi, wife of K.C. Shivanna of Sawantwadi District, Sindhudurg on 2/1/2006. 3. The case of the prosecution was that the appellant was serving in the hotel run by K.C. Shivanna of Sawantwadi and his wife Vanjakshi (the deceased). The appellant served in that hotel from 15/6/2005 to 21/11/2005. During this period, amount to the extent of 12% of his salary was deducted by way of Provident Fund contribution by the owner of the hotel. The appellant was repeatedly asking the owner of the hotel and his wife (the deceased) to pay the said amount. Despite repeated demands, the amount was not paid. Hence, on 2/1/2006, the appellant went to the house of the deceased to claim the amount. The appellant asked for the amount. The deceased refused to pay him. There was altercation between the two. The appellant removed a knife from his pocket and stabbed the deceased. AJN 3 4. After perusing the evidence on record, learned Sessions Judge by the impugned judgment and order, convicted the appellant for the offence punishable under section 304(II) of the IPC and sentenced to suffer RI for eight years and to pay fine of Rs.500/- in default, to undergo RI for one month. The appellant has challenged his conviction and sentence in this appeal. The appeal was admitted on 5/6/2008. 5. It appears that on 25/6/2008, Mr. Gawankar, learned counsel appearing for the appellant pressed for consideration of learned Judge, the appellant's plea under the Probation of Offenders Act, 1958 (for short, “the said Act”). The Division Bench of this court (F.I. Rebello & K.U. Chandiwal, JJ.) took into consideration the submission of learned counsel for the appellant that when the appellant committed the offence, he was aged about 19 years. Reference was made to sections 3, 4 and 6(2) of the said Act. The Division Bench observed that in cases where the convict is less than 21 years of age, law treats him differently from those who are AJN 4 above 21 years of age and it is the duty of the court to take into consideration section 6(2) of the said Act. The Division Bench further observed that though attention of the trial court was invited to section 6 of the said Act, whether the benefit under the said Act ought to be given to the appellant was not considered. Therefore, the court directed the District Probation Officer, Sindhudurg to submit a report to this court under section 6(2) of the said Act. We may reproduce the operative part of the said order : “(i) The District Probation Officer, Sindhudurga to submit the report including any information relating to the character, physical and mental condition of the offender to this court; (ii) The report to be submitted within 4 weeks from the writ being served on the District Probation Officer, District Women & Child Welfare Office, Administrative Building, Block No.106, Near Employment Exchange, Sindhudurg Nagri, Oras, Taluka – Kudal, District Sindhudurg.” Pursuant to the above order, Report dated 31/7/2008 has been submitted to this court by the District Probation Officer, Sindhudurg-Oros (for short, “the said Report”). It is marked “X”. AJN 5 6. Following is the gist of the said Report. As on the date of the said Report, the appellant is 23 years of age. When the offence was committed, the appellant was studying for Second Year B. Com. course in Pancham Khemraj Mahavidhyalaya, Sawantwadi. He had taken B. Com. Degree examination from Yeshwantrao Chavan Open University. He had scored 62% marks in 10th standard and 73% marks in 12th standard. He was earlier working as a waiter in Hotel Madhura Gangai, Oros, Dist. Sindhudurg. However, because of distance between Oros and Kudal, he used to miss his lectures. It was inconvenient to work at Oros. Therefore, he started working as a waiter in Shree Palace Hotel at Sawantwadi so that he could attend the college at Sawantwadi. He was drawing salary of about Rs.1,500/- to Rs.2,000/- per month. When contacted, the Principal of the college stated that the appellant is a quiet and friendly person. He is a disciplined student having liking for education. The appellant comes from a very poor family. His father is dead. His mother is working as a domestic servant. His ancestral house is simple and bereft of any AJN 6 facilities. It is divided by a partition made of plywood and pieces of gunny bags and one portion is rented out. The appellant's family is surviving on this income. The mother and relatives of the appellant stated that the appellant has a quiet disposition. He is a friendly person. He served in a hotel to pay for his education. They stated that he does not have a criminal bent of mind. They expressed surprise as to how he committed the present crime. They are attached to the appellant. Neighbours of the appellant also have a very good opinion about the appellant. The employees of the hotel where the appellant was working, when contacted, informed that the appellant's behaviour was very good. The atmosphere in the appellant's house is rustic and religious. Members of his family are attached to each other. They are compassionate. The atmosphere in the house is, therefore, conducive to the appellant' s rehabilitation. The appellant was working in Shree Palace hotel for about six months. Because of some family reasons, he had taken two days' leave. However, he overstayed at his house. Therefore, he was removed from service. His employer was to pay him Rs.600/- as arrears of his salary. As AJN 7 the appellant needed this money to pay his college fees, he phoned the employer and requested for money. He personally met the Managing Director of the hotel (the deceased) for money. She refused to pay the money. The appellant badly needed this money as he wanted to pay his fees. Because the Managing Director (the deceased) refused to pay the amount, with a view to creating some fear in the mind of the Managing Director (the deceased), he took out a knife from his pocket. He tried to threaten her and in that the Managing Director (the deceased) received an injury on her abdomen. The appellant stated that he did not intend to kill her. Inadvertently, the Managing Director received the injury and she died. The appellant merely wanted to recover his money by creating fear. In the opinion of the Probation Officer, the appellant was not properly guided. This is his first offence. Since the date of offence, he is in jail. The appellant is repenting for what he has done. He wants to complete his education; take up a job and live a good life. The Probation Officer has suggested that considering the appellant's age and the position of his family, he may be given one chance to reform himself. AJN 8 7. Mr. Gawankar, learned counsel for the appellant has stated that he is not pressing the appeal on merits. He submitted that this is however a fit case where the benefit of the said Act should be given to the appellant. We have also heard Ms. Kantharia, learned A.P.P. for the State. 8. During the course of hearing, learned Judge was shown the bonafide certificate issued by the Pancham Khemraj Mahavidhyalaya, Sawantwadi, where the appellant was studying. It is pertinent to note that in the impugned order, learned Judge observed that the appellant was a college student and the college record indicates that his date of birth is 24/2/1986. Marklist (Ex-64) acquired by the investigating officer during the course of investigation showed that the appellant had secured 73% marks in H.S.C. Board Examination. Learned Judge observed that the appellant was demanding provident fund amount. He did not stab the deceased immediately after opening the door. He dealt a single blow with a kitchen knife on the abdomen of the deceased AJN 9 and he proceeded to the police station with constable Gujar. Learned Judge concluded that had the money been paid, the appellant would never have stabbed the deceased. The appellant never intended to kill the deceased. Describing the appellant as a youth, learned Judge observed that the incident took place because of sudden and grave provocation. Since there was no intention to kill, learned Judge convicted the appellant under section 304 Part II of the IPC and sentenced him to suffer RI for 8 years. 9. When the relevant provisions of the said Act were pointed out to learned Sessions Judge, he noted that the appellant went to the residence of the deceased knowing that no male member was present in the house and he attacked her and inflicted the blow of knife on her abdomen and, thereafter, he tried to run away. According to learned Judge the appellant is not entitled to the benefit of section 4 or section 6 of the said Act because of the gravity of the offence. These observations of leaned Sessions Judge are not consistent with his observations, which we have AJN 10 quoted hereinabove, made while convicting the appellant for offence under section 304 Part II of the IPC and sentencing him to 8 years RI instead of convicting him under section 302 of the IPC and sentencing him for life imprisonment. In our opinion, learned Judge ought to have called a report from the Probation Officer which he failed to do. Reasons for not granting him benefit of the said Act, stated by learned Judge, are not satisfactory. Learned Sessions Judge has, inter alia, recorded that the offence is grave and, therefore benefit of the said Act cannot be granted. That, the offence is grave cannot be denied. Every murder is grave. It is the circumstances which led to the murder, the age of the accused, the fact that he is a student and the fact that this is his first offence which should have been taken into consideration by learned Sessions Judge. 10. In Abdul Qayum v. The State of Bihar, AIR 1972 SC 214, the accused therein was 18 years of age when he committed offence under section 379 of the IPC. He was sentenced to imprisonment for six months. Report of the Probation Officer was AJN 11 called for. The Probation Officer recommended that benefit of the said Act be given to the accused. The trial court however refused to give the benefit on the ground that the accused was an associate of accused Shamim who is a hardened criminal and a person of doubtful character and the incidents of pick-pocketing are very rampant. The Supreme Court allowed the appeal filed by the accused. The Supreme Court observed that the Probation Officer's Report did not justify the conclusion that the accused was either a hardened criminal or is associated with hardened criminals for denying him the benefit of the provisions of the said Act. The Supreme Court observed that to sentence the accused to imprisonment would itself achieve the object of associating him with hardened criminal which association the courts thought was a good ground for denying him the benefit of being released on probation. The Supreme Court observed that if the accused was released on probation of good conduct, there is hope of his being reclaimed and afforded the opportunity to live a normal life of a law abiding citizen. The Supreme Court ordered the release of the accused under section 4 of the said Act after taking a bond from AJN 12 him and a surety bond from his father. Similar view was taken by the Supreme Court in Daulat Ram v. The State of Haryana, 1972 Cri. L.J. pg. 1517. Following the above decision, learned Single Judge of this court (A.S. Oka, J.) gave the benefit of the provisions of the said Act to the accused who was convicted for offence under section 379 of the IPC. Learned Single Judge has placed reliance on the observations of the Supreme Court in Daulat Ram' s case (supra) that section 6 of the said Act deserves to be liberally construed so that its operation may be effective and beneficial to young offenders who are prone more easily to be led astray by influence of bad company. We are in respectful agreement with learned Single Judge. 11. Section 360 of the Code of Criminal Procedure, 1973 also states that when any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, AJN 13 and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour. 12. The said Report clearly indicates that the appellant who is a student was keen on completing his education. He was working as a waiter and earning money so that he could complete his education. He comes from a poor family. His father is dead. His mother is working as a domestic servant. Obviously, with the paltry amount, which he was earning, he must be supporting his family AJN 14 and paying his fees. The deceased had removed him from the job. He wanted to recover arrears of his pay so that he could pay his fees. When the employer refused to pay his rightful dues, he appears to have lost his balance. It appears that he wanted to create fear in the mind of his employer so that she would pay the money. Therefore, he took out the knife. In the heat of passion, he appears to have dealt a blow with the knife on the abdomen of the deceased. 13. In the facts and circumstances of the case and in the light of the judgment of the Supreme Court in Abdual Qayum's case (supra), in our opinion, the appellant must be given benefit of the provisions of the said Act and section 360 of the Code. It must be noted that out of the 8 years' sentence awarded to the appellant, the appellant has already undergone about two years' sentence. Hence, the following order : O R D E R (i) The impugned order of conviction is AJN 15 confirmed. (ii) Instead of sentencing the appellant at once to the punishment, the appellant shall be released on probation on his entering into a bond in the sum of Rs.10,000/- with one or two local sureties in the like amount to appear and receive sentence when called upon during the period of three years and in the meantime, to keep peace and maintain good behaviour. (iii) The appellant is in Kolhapur Central Prison. The appellant shall furnish one or two local sureties as directed by us. The superintendent of Kolhapur Central Prison, on being satisfied that such sureties are furnished, shall release the appellant on his executing a personal bond of Rs.10,000/- so that he can appear before the District AJN 16 Probation Officer and execute a bond and undertaking in prescribed format as per sub- section (1) of section 4 of the said Act and sub-section (4) of section 4 of the said Act respectively. (iv) It is directed that the appellant shall remain under supervision of the District Probation Officer, Sindhudurg during the aforesaid period of three years and shall observe the directions and conditions of the bond of good conduct which is to be furnished by him. (v) The Bond shall be executed before the trial court by the appellant within a period of four weeks from the date of receipt of writ of this order by the trial court. 14. The criminal appeal is disposed of in the aforestated terms. AJN 17 Needless to say that the connected criminal application shall also stand disposed of. [SMT. RANJANA DESAI, J.] [DR. D.Y. CHANDRACHUD, J.]