TaxTMI 
TaxTMI 
2010 (5) TMI 957
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....clists passing through and Shri Lalwala received serious injuries on the vital part of his body. However, he survived. The complaint was given on the very same day by the brother of Shri Lalwala, which was registered vide IC. R.No.111/02 with Athwalines Police Station, Surat. After some investigation, police filed A-Summary on 27.02.2003. In the month of May 2003, a secret information was received by Crime Branch, Surat for the alleged involvement of accused No. 1, who is appellant of Criminal Appeal No.1803/05 (hereinafter referred to as 'A1') and accused No.4, who is appellant of Criminal Appeal No.1800/05 (hereinafter referred to as 'A4'). In the attack on Shri Lalwala, further investigation was carried out and thereafter, it was realized in the investigation that a conspiracy was hatched by targeting Shri Hasmukhbhai Lalwala as Hindu leader so as to take revenge from Hindu community on account of certain attacks on Muslims after Godhra carnage and also with an intention to strike terror amongst people of Hindu community and thereby to cause threat to the community. The provisions of Prevention of Terrorism Act, 2002 (hereinafter referred to as "POTA") was found to have been att....
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....oning Authority) Exh.110 PW-13 Mr. Anandkumar Khusalbhai Pandya (DCP, Zone-III, Ahmedabad City and an authorised officer to record statement) Exh. 119 PW-14 Mr. Hasmukhbhai Laljibhai Rathod (ACP-Surat-(Investigating Officer) Exh.127 The prosecution also produced documentary evidence in support of its case, which are as under: 1. Exh.92 Report of registration of offence dated 21.05.2002 2. Exh.91 Original complaint of the complaint Ganesh chandra, dated 21.05.2002. 3 Exh.40 Panchnama of scene of offence dated 21.05.2002. 4 Exh.41 Copy of yadi sent to the export of FSL to visit scene of offence and its preliminary report dated 21.05.2002. 5 Exh.42 Panchnama of production of bullet recovered from the body of the injured by Dr. Amar during operation dated 21.05.2002. 6 Exh.43 Panchnama of production of clothes worn by injured Hasmukhbhai at the time of incident dated 21.05.2002. 7 Exh.45 Panchnama of scene of offence shown by the accused Mohmed Asharaf Ismail Nagori, dated 12.05.2003. 8 Exh.44 Panchnama regarding search of the accused Mohmed Ashraf Ismail dated 12.05.2003. 9 Exh.....
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....t of accused Mohmed Tahir Aarif Bakhaswala under section 32 of the POTA, dated 24.06.2003. 31 Exh.50 Opinion of FSL dated 29.06.2003. 32 Exh.137 Copy of yadi written to the office of R.T.O. Dated 30.06.2003. 33 Exh.138 Copy of letter written to the Director, FSL for examination of muddamal dated 14.07.2003. 34 Exh.139 Copy of dispatch note dated 14.07.2003. 35 Exh.140 Receipt from FSL regarding muddamal, dated 15.07.2003. 36 Exh.117 Letter written to Police Commissioner, Surat for permission to file chargesheet against the accused of the aforesaid case dated 30.07.2003. 37 Exh.141 Reminder to FSL expert dated 13.10.2003. 38 Exh.142 Copy of reminder yadi sent to Director, FSL regarding examination of muddamal dated 22.10.2003. 39 Exh.143 Reminder Yadi sent to Director, FSL for opinion dated 07.11.2003. 40 Exh.144 Letter from Police Commissioner, Surat to ACP Mr.Rathod informing about chargesheet for the offence under Arms Act and section 3 of the POTA against the accused dated 06.11.2003. 41 Exh.111 Original letter regarding sanction given by competent authority to prosecute against th....
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....he time spent in judicial custody was set off. It is under these circumstances, the present appeals before this Court. 7. We have heard Mr.K.B. Anandjiwala for A1, appellant of Criminal Appeal No.1803/05 and Mr.S.V.Raju with Mr. Chetan Pandya for A4, appellant of Criminal Appeal No.1800/05 and Mr. Jayant M.Panchal, learned Special Public Prosecutor for the State in both the appeals. 8. Before we advert to the task of overall reappreciation of the evidence, it would be just and proper to consider the legal position and simultaneously, also to consider the questions of law contended by the respective parties. 9. The first contention raised by the learned counsel appearing for the appellants was that once the A-Summary was filed, there was no lawful warrant to reopen the case on the basis of the alleged material of discovery or pointing out panchnama as sought to be contended and canvassed by the prosecution. It was submitted that the fact of the incident in question, scene of offence, the injury received, etc. were known to the prosecution and on the basis of such material available, A-Summary report was also filed and the chapter was closed. There was no reason or valid gro....
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....s of the information furnished. Thus, the information conveyed in the statement to police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the Section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. " Further, at para 125, it was observed thus - "We are of the view that Kotayya's case is an authority for the proposition that 'discovery of fact' cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place." At para 142, it was observed as under: "There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer shou....
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....ping in view the subsequent investigation, it can be said that the same is within the scope and ambit of section 27 of the Act admissible in evidence and consequently could be a valid base for further investigation into the matter. Hence, the said contention deserves to be rejected. 13. It was next contended by the learned counsel appearing for the appellants that the seizure of computer and the extract of computer files and the translation thereof have been wrongly accepted in evidence by the Trial Court. It was submitted that after taking custody of the computer, it was not kept in sealed condition. Further, the mandatory procedure for proving a document from an electronic machine as per the Evidence Act has not been followed. The learned counsel in support of his submission attempted to rely upon the provisions of section 65B of the Evidence Act and it was submitted that until the evidence was led as required by the provisions of section 65B of the Evidence Act, the material in Urdu which is stated to be the extract from the computer could not have been admitted in evidence. It was also submitted that no translator from Urdu to Gujarati was examined by the prosecution in supp....
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....it appears to us that sufficient material has come on record. The prosecution has examined Shri Kuldeepchandra L. Kapoor, Secretary, Department of Home Affairs as P.W.12 at Exh.110. The pertinent aspect is that after the proposal was received, the file had routed upto the highest authority, i.e., Chief Minister of the State. Any of the authority, as per the business rules, from the lowest in the cadre of the State Government, until the final approval came to be granted by the highest authority, has not recorded dissented note nor any such record has come out for such purpose. The Apex Court had also an occasion to consider the aspects of application of mind while granting sanction by the competent authority. In its decision in the case of State (NCT of Delhi) Vs. Navjot Sandhu (supra), after considering the Privy Council decision in Jaswant Singh Vs. State of Punjab [AIR 1958 SC 124], it was inter alia observed as under - "The elaborate narration of facts culled out from the record placed before the sanctioning authority and the discussion as to the applicability of each and every Section of the penal provision quoted therein is not an imperative requirement. A pedantic re....
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....red that the written intimation was not required to be given in view of the facts of the present case, then also no reasonable time was given to the accused concerned to decide as to whether he should give confessional statement, which may be used against him or not. It was therefore submitted that not giving of the reasonable time would vitiate the recording of the confessional statement. It was also further contended that there was no compliance to the provisions of section 52 of the POTA and under these circumstances, it cannot be said that the confessional statement was recorded after due compliance of the statutory requirement. It was also contended that both the accused had retracted from the confessional statement by raising the ground that the same was under duress and coercion and mental torture in the police custody and therefore, such confessional statement lacks voluntariness and is not a valid confessional statement in the eye of law as per the provisions under section 32 of the POTA. It was submitted that if such confessional statements are excluded from the evidence of the prosecution, not only the substratum of the case of the prosecution would be lost, but the case....
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....base for convicting the accused for the allege offence. 20. In order to consider the contention, section 32 of the POTA would be required to be considered, which reads as under: "32. Certain confessions made to police officers to be taken into consideration.- (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person Downloaded on : Fri Oct 06 11:37:27 IST 2023 before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or the rules made thereunder. (2) A police officer shall, before recording any confession made by a person under sub-section (1), explain to such person in writing that he is not bound to make a confession and that if he does so, it may be used against him: Provided that where such person prefers to remain silent, the police officer shall not compel or indu....
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....t, the fulfillment of such mandate is inherent in the process of recording a confession by a statutory authority. What is necessarily implicit is, perhaps, made explicit. But the notable safeguards which were lacking in TADA are to be found in subsections 4 & 5." 22. It is true that section 32 of POTA does require to the police officer to explain the person concerned in writing that he is not bound to make a confession and if such person does so, it may be used against him. Such intimation in writing in normal circumstances, is required to be followed, but the compliance of such provision orally is fully established in the oral evidence of the officer who recorded the confessional statement and noncontradiction thereof in the cross-examination, whether would not invalidate such confessional statement. Further, when the confessional statement is found with the corroborative evidence on record coupled with the oral evidence of the officer who recorded the confessional statement for explaining to the accused that he is not bound to make the confessions and that if any confession is made, such may be used against him, it is not possible to hold that the failure to explain in writing....
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....peal, reference and revision." 24. The Apex Court had an occasion to consider the question as to whether the provisions of section 463 of the Cr.P.C. could be applied to the provisions of section 15 of the TADA while considering the matter for confessional statement. In the case of Ahmed Hussein Vali Mohammed Saiyed and Anr. reported at 2009(3) SCC (Cr.) 368, it was observed at para 53 as under: "It is also clear that while recording confessional statement, if there is omission to obtain signature of the accused at the end of the confession, the same is admissible and the omission made by the competent officer is curable in view of the provision contained in Section 463 Cr.P.C. In the same manner, the Court has held even if there was any omission in respect of the certificate which the competent officer is required to append under sub-rule (3) at the foot of the confession, it can be cured as provided under Section 463 of the Cr.P.C. Such approach is permissible in view of Section 463 of the Cr.P.C. in regard to the omission in recording confession under Section 164 Cr.P.C., the Court has clarified that the same approach can be adopted in respect of confession recorded ....
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....t the judicial custody. It was observed that if there is denial of safeguards in sub-section (2) to (4) of section 52, it will be one of the relevant factors to weigh with the Court to act upon the confession or to discard the confession. It was observed that to that extent, it plays role, viz. confession recorded under section 32, but they are not as clinching as the provisions contained in sub-section (2) to sub-section (5) of section 32. The examination of the contention by the learned counsel for one of the appellant, Mr. Raju that there was no compliance to the provisions of section 52 of the Act may deserve consideration only if there is denial of the safeguard under sub-section(2) to (4) of section 52. Nowhere, it is the case of the defence before the Trial Court that the right to consult a legal practitioner was denied to any of the accused or that the information was not communicated about the arrest of the accused to the family members or that the accused was not permitted to meet the legal practitioner. The contention that it is required for the prosecution to prove that the procedure as required under section 52 of the Act was followed is ill-founded inasmuch as it is o....
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....P.W.13, Exh.119, he has specifically deposed before the Court that when he had put to A4 about the time to think for giving a confessional statement, A4 had replied that, he is not desirous to think further and thereafter, the consent letter was prepared and it took about 8-10 minutes. Similarly, when A1 was informed about the time to think, he also declared that he is not desirous to think further and he is desirous to give confessional statement. Thereafter, the preparation of the recording of the statement took about 5-8 minutes. The said part of the evidence has remained uncontradicted in the cross-examination of the said witness. It is in that light of the fact situation, the contention deserves to be examined. 30. Section 32 of POTA itself does not provide for any specific time to be given by the concerned police officer to the accused concerned to think about. However, as the requirement of sub-section (3) is to record the confessional statement in the free atmosphere from threat or inducement, it is to be read that a reasonable time is required to be given by the concerned police officer to the concerned accused to think as to whether he should or he should not give the ....
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....ds, according to the learned counsel, the expression 'thereafter' shall be read only in conjunction with the latter part of sub-Section (5) beginning with 'and if there is any complaint' and not applicable to the earlier part. In our view, such a restrictive interpretation of sub-Section (5) is not at all warranted either on a plain or literal reading or by any other canon of construction including purposive construction. The other argument raised by the learned counsel is that the provision regarding judicial custody, cannot be read to be a mandatory requirement so as to apply to all situations. If the Magistrate is satisfied that the confession appears to have been made voluntarily and the person concerned was not subjected to any torture or intimidation, he need not direct judicial custody. Having regard to the circumstances of this case, there was nothing wrong in sending back Afzal to police custody. This contention cannot be sustained on deeper scrutiny." (Emphasis supplied) At the bottom of the verification statement, the learned Magistrate has recorded on 24.06.2003 that the accused is not required to be sent for medical examination and as the remand h....
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.... case. It has come on record that none of the accused, i.e., either A4 or A1 have complained to the Magistrate about any physical or mental torture. Therefore, the interpretation as sought to be canvassed by the learned counsel for A4 to the applicant for opposing the remand on 15.06.2003 cannot be accepted to dilute the evidentiary value of the confessional statement by way of retraction, nor such may be termed as retraction as sought to be canvassed. The aforesaid is coupled with the circumstance that such opposition to the remand is prior to recording of the confessional statement of A4. Therefore also, the alleged retraction prior to the recording of the confessional statement cannot be termed as retraction as sought to be canvassed by the learned counsel for the appellant-A4. Apart from the above, the retraction of the confessional statement by A1 is after about 3 months and the retraction of the confessional statement by A4 is on 24.06.2003. Both if considered as it is, such are long period of more than 2-3 months. Therefore, such retraction can only be termed as afterthought or ingenuous device to nullify the evidentiary value of the confessional statement. Further, both the....
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.... the Apex Court in the case of State of Gujarat Vs. Mohammed Atik reported at 1998 SCC (Cri) 936, it was observed as under: "We have, therefore, absolutely no doubt that a confession, if usable under Section 15 of the TADA, would not become unusable merely because the case is different or the crime is different. If the confession covers that different crime it would be a relevant item of evidence in the case in which that crime is under trial and it would then become admissible in the case." (Emphasis supplied) 37. The Apex Court in the case of Devender Pal Singh Vs. State of NCT of Delhi and Another reported at 2002 (5) SCC, 234, while considering the evidentiary value of the confessional statement and the requirement of the corroboration thereof, majority observed inter a lia at para 33, relevant of which reads as under: "Once this is done the prosecution discharges its burden and then it is for the accused to show and satisfy the Court that the confessional statement was not made voluntarily. The confessional statement of the accused can be relied upon for the purpose of conviction, and no further corroboration is necessary if it relates to the accused hi....
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....n civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained". 15.1 This question has been examined threadbare by a Constitution Bench in Pooran Mal v. Director of Inspection 1974(1) SCC 345 and the principle enunciated therein is as under : "If the Evidence Act, 1872 permits relevancy as the only test of admissibility of evidence, and, secondly, that Act or any other similar law in force does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor is it open to us to strain the language of the Constitution, because some American Judges of the American Supreme Court have spelt out certain constitutional protections from the provisions of the American Constitution. So, neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights cane we spell out the exclusion of evidence obtained on an illegal search. So far as I....
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....more persons to commit an offence." In this context, the observations in the case Noor Mohammad Yusuf Momin vs. State of Maharashtra (AIR 1971 SC 885) are worth nothing: "[I]in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material." 99. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused. [vide Esher Singh vs. State of A.P., 2004 (11) SCC 585]. Lord Bridge in R. vs. Anderson [1985 (2) All E.R. 961] aptly said that the evidence from which a jury may infer a criminal conspiracy is almost invariably to be found in the conduct of the parties. In (AIR 1945 PC 140), the Privy Council warned that in a joint trial care must be taken to separate the admissible evidence against each accused and the judicial mind should not be allowed to be influenced by evidence admissible only agai....
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.... innocent or inadvertent events and incidents should not enter the judicial verdict." 42. Therefore, in light of the cumulative effect of the circumstances, before, during and after the occurrence of incident, is required to be considered while considering the aspects of the conspiracy and the involvement of A4 in such conspiracy and not on the sole ground as sought to be canvassed and contended by the learned counsel for A4 merely because there is no active role or participation in shooting of the bullet to Shri Lalwala and therefore, he cannot be considered as a part of the alleged conspiracy. 43. It was next contended by the learned counsel appearing for the accused that as per the FSL report, it has not come out that the bullet used for causing injury to the victim was fired from the same weapon which is recovered by the prosecution. It was therefore submitted that the link in the case of the prosecution is not proved beyond reasonable doubt and the accused would be entitled to the benefit thereof and it would not be a case for conviction of the accused. 44. Whereas, the learned counsel appearing for the prosecution did contend that the bullet is recovered from the bod....
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.... Singh v. State of Gujarat reported at AIR 2001 SC 746, observed at para 88, relevant of which reads as under: "It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land. In such type of terrorist activities if arms and ammunitions are recovered at the instance of or on disclosure by accused, it can be stated that presumption of innocence would not thereafter exist and it would be for the accused to explain its possession or discovery or recovery and would depend upon facts of each case which are to be appreciated on the scales of common sense of a prudent man possessing capacity to "separate the chaff from grain". In such cases, as stated by Lord Denning J., law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice." (Emphasis supplied) 49. Further, in Devender Pal Singh Vs. State of NCT of Delhi (supra), while considering the case under TADA, the Apex Court ob....
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....y any other means whatsoever, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community or causes damage or destruction of .any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act; (b) Is or continues to be a member of an association declared unlawful under the Unlawful Activities (Prevention) Act, 1967, or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property, commits a terrorist act. Exp....
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....d intent, shall be punishable with imprisonment which may extend to three years and fine." 52. The Apex Court had an occasion to consider the aspects of similar provision in TADA in the case of Hitendra Vishnu Thakur v. State of Maharashtra reported at AIR 1994 SC 2623, at paras 11 & 15, reads as under: "11......When the extent and reach of the crime committed with the intention as envisaged by S. 3(1), transcends the local barriers and the effect of the criminal act can be felt in other States or areas or has the potential of that result being felt there, the provisions of S. 3(1) would certainly be attracted. Likewise, if it is only as a consequence of the criminal act that fear, terror or/and panic is caused but the intention of committing the particular crime cannot be said to be the one strictly envisaged by S. 3(1), it would be impermissible to try or convict and punish an accused under TADA. The commission of the crime with the intention to achieve the result as envisaged by the section and not merely where the consequence of the crime committed by the accused create that result would attract the provisions of S.3(1) of TADA. Thus, if for example a person goes on....
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....he Act, the terror or panic etc. must be actually intended with a view to achieve the result as envisaged by the said section and not be merely an incidental fall out or a consequence of the criminal activity. Every crime, being a revolt against the society, involves some violent activity which results in some degree of panic or create some fear or terror in the people or a section thereof, but unless the panic, fear or terror was intended and was sought to achieve either of the objectives as envisaged in S. 3(1), the offence would not fall stricto sensu under TADA. Therefore, as was observed in Kartar Singh's case (1994 Cri LJ 3139 (SC) by the Constitution Bench : "Section 3 operates when a person not only intends to overawe the Government or create terror in people etc, but he uses the arms and ammunitions which results in death or is likely to cause and damage to property etc. In other words, a person becomes a terrorist or is guilty of terrorist activity when intention, action and consequence all the three ingredients are found to exist." 53. It is in light of the aforesaid legal position, if the material of translated files at Exhibits 81, 82 & 83 are considere....
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....unity is pampered so as to take revenge for the misdeeds of other person belonging to other religion from the innocent persons belonging to the other religion, the same would also strike at the unity of the nation and consequently, may touch to the security of the nation. The aforesaid can be equally said if one is to profess and follow the basic principles of Islam being a real Muslim. At this stage, we may profitably extract certain observations of the author Maulana Wahiduddin Khan, who has worked as President of the Islamic Centre, New Delhi and in his book "The True Jihad", he has, while describing the real principles of peace, tolerance and nonviolence in Islam, based on the quotations of Quran, observed that Islam never permits to use violence for taking revenge or to use the power to offend somebody, but the same is to be used only as a protective measure and the war is to play the role only when it is unavoidable after all measures to bring peace have failed. Such are the principles known in Hinduism too. It is only by way of self defence, attack is permissible and not for causing injury to somebody. Such principles are interwoven even in the Indian Penal Code for invoking....
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....was targeted and there was shooting. The target is not only on the vital part of the body, but it appears that it is on account of the shot, did not reach to the target, the bullet hit on the cheekbone. Had it been just above, possibly the consequence would have been otherwise. Even if it is considered that the consequence is the injury caused on the cheekbone with the bullet, the culpability or the intention of the accused to create terror amongst a particular section of the society, viz. Hindu and more particularly in Surat city would not stand diluted. 56. The further pertinent aspect is that as per the evidence of the police officers, who were examined as witnesses, it has come on record that after the bullet injury was received by Shri Lalwala, there was tense situation in the nearby area. Therefore, it is not a matter where the targeted action was not brought about the result. It may be that the terror which was intended with higher degree might not have resulted, but if the said aspect is considered in light of the above referred decision of the Apex Court in the case of Hitendra Vishnu Thakur (supra), the offence can be said to have been committed since the culpability i....
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....confessional statements. Therefore, if the whole episode or the totality of the incident keeping in view the planned conspiracy to take revenge and the intended action and thereafter, the creation of tensed situation in the area leads us to record the conclusion that the ingredients of section 3(1)(a) were satisfied and the guilt recorded by the learned Special Judge (POTA) of both the accused cannot be said to be erroneous. 58. It was next contended by the learned counsel appearing for the accused that in any case, the charge of section 25(1)(c) under the Arms Act was wrong and such section did not exist in the statute book at the relevant point of time and does not exist even as on today. Therefore, it was submitted that the conviction of the accused for the alleged offence under the Arms act deserves to be set aside. 59. It is true that the charge was under section 25(1)(c) of the Arms Act and no such provision exist in the statute book since the said section was already deleted with effect from 25.05.1988. However, it is a proved fact as led by the prosecution that the firearm was used for commission of the alleged offence and the injury was also received by the fir....
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.... a higher side and it is also on the higher side for the offence punishable under section 307 of IPC. It was submitted that one of the accused, viz. A4, had to undergo imprisonment in respect of other POTA Case No.12/03 for a period of 3 years pending the trial and ultimately acquitted at the end of the trial. It was submitted that the accused are in jail since about the period of more than 5 years. Therefore, keeping in view the aspects that one of the accused, i.e., A4 had undergone imprisonment as under trial prisoner for 3 years, this Court may reduce the punishment as 5 years for the period undergone and may release the accused who are languishing in jail for a long period. 62. The principles of imposition of sentence are by now well settled. Apart from the aspects of personal circumstances of the accused, Court cannot lose sight of the deterrent effect to be created while imposing sentence. But at the same time, the gravity of the offence and the consequential effect arising on account of the commission of offence would also be one of the relevant circumstance while imposing sentence. It does appear from the evidence of the case that the intention was not to cause injury, ....