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2023 DIGILAW 1429 (BOM)

Tikaram v. State of Maharashtra

2023-07-04

G.A.SANAP

body2023
JUDGMENT/ORDER 1. Heard. 2. The applicant, who was injured in the incident, has challenged the correctness of the judgment and order dtd. 9/12/2016 passed by the learned Additional Sessions Judge, Chandrapur, whereby the learned Sessions Judge, maintained the conviction but reduced the substantive sentence of two years awarded by the learned Judicial Magistrate First Class, Bramhapuri to the imprisonment till rising of the Court. 3. The facts necessary for the purpose of addressing the limited grievance made by the applicant can be stated as follows: The incident in question occurred on 5/11/2002 at about 2:00 p.m. The report of the incident was lodged by father of the applicant. It is the case of the prosecution that applicant, who was examined as PW-2, was standing with one Shri Shende, Shri Kokulwar and Shri Wairkar at the pan shop of Raju Tonge, situated at Gandhi Chowk of their village Mendki. At that time, accused No. 4 Bhojraj Venkati Jellewar came there and started beating the applicant. He gave kick and fist blows to the applicant. The remaining accused came there armed with sticks. They inflicted the blows with the sticks on the applicant. The elder brother of the applicant came there to rescue him. The accused assaulted him, as well. The father of the applicant after coming to know of the assault came to the spot. He found that his both sons were lying in unconscious condition. He alongwith the eye witnesses, who gave evidence before the Court, took applicant-Tikaram and his brother to the hospital. It is stated that the accused on the way threatened the father and other persons and tried to prevent them from taking the injured to the hospital. Applicant (PW-2) had sustained serious injuries. His two teeth were dislocated. He had sustained fracture to his jaw. He was treated by his family/private Doctor Siddeshwar Narange (PW-8). 4. After investigation, the chargesheet was filed. In order to bring home the guilt against the accused, the prosecution examined in all 12 witnesses. Learned Magistrate on consideration of the evidence found the four accused/non-applicant Nos. 2 to 5 guilty of the offence punishable under Sec. 325 read with Sec. 34 of the IPC and sentenced them to suffer rigorous imprisonment for two years and to pay fine of Rs.1000.00 each. The trial Court further convicted the accused/non-applicant Nos. Learned Magistrate on consideration of the evidence found the four accused/non-applicant Nos. 2 to 5 guilty of the offence punishable under Sec. 325 read with Sec. 34 of the IPC and sentenced them to suffer rigorous imprisonment for two years and to pay fine of Rs.1000.00 each. The trial Court further convicted the accused/non-applicant Nos. 2 to 5 for the offence punishable under Sec. 506 (II) read with Sec. 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for six months and to pay fine of Rs.500.00 each. The appeal filed against their conviction was dismissed. However, learned Sessions Judge modified the order of learned Magistrate with regard to substantive sentence. Learned Sessions Judge has directed the accused to undergo the sentence till rising of the Court. 5. The accused/non-applicant Nos. 2 to 5 have not challenged the order passed by the learned Sessions Judge. The applicant/injured being aggrieved by the order of the learned Sessions Judge modifying the substantive sentence has come before this Court. It is his case that the sentence awarded by the learned Sessions Judge on modification of the order passed by the learned Magistrate was disproportionate to the gravity of the crime. 6. I have heard learned Advocate Mr Bhushan Sachdev for the applicant/injured. Learned Advocate Mr S. V. Sirpurkar for the non-applicant Nos. 2 to 5 and the learned APP Mr Amit Chutke for the State. Perused the record and proceedings. 7. Learned Advocate for the applicant submitted that conviction in this case was for the offence punishable under Sec. 325 of the IPC. It is pointed out that punishment provided for the offence under Sec. 325 may extend to seven years. Learned Advocate pointed out that the learned Magistrate, taking into consideration the facts of the case and particularly the injuries suffered by the applicant (PW-2) had awarded substantive sentence of two years. Learned Advocate pointed out that the learned Magistrate in his order observed that the accused had acted in a very cruel manner at the time of the incident. Learned Advocate, therefore, submitted that the substantive sentence awarded by the learned Sessions Judge is disproportionate to the gravity of the crime. It is submitted that therefore the sentence on both counts is required to be enhanced. 8. Learned Advocate for the non-applicant Nos. 2 to 5 submitted that the parties are related to each other. Learned Advocate, therefore, submitted that the substantive sentence awarded by the learned Sessions Judge is disproportionate to the gravity of the crime. It is submitted that therefore the sentence on both counts is required to be enhanced. 8. Learned Advocate for the non-applicant Nos. 2 to 5 submitted that the parties are related to each other. Learned Advocate submitted that at the time of the incident the civil suit was pending between the parties in respect of the agricultural land. Learned Advocate pointed out that on that count the parties were not on good terms. Learned Advocate submitted that the incident in question occurred in 2002. Learned Advocate submitted that accused and the informant have moved ahead in their life and therefore, after 20 years from the incident, they may not be directed to undergo any substantive sentence. Learned Advocate submitted that if the Court is inclined to accept the submissions advanced by the learned Advocate for the applicant then in that event the accused/non-applicant Nos. 2 to 5 may be directed to pay a fine proportionate to the gravity and seriousness of the crime. 9. Learned APP in all fairness submitted that considering the gravity and seriousness of the crime the sentence awarded by the learned Sessions Judge on modification was disproportionate. Learned APP submitted that sentence is required to be enhanced. However, learned APP submitted that in the facts and circumstances instead of enhancing the substantive sentence, the sentence of fine be enhanced and the same be ordered to be paid to the applicant/ injured as a compensation. 10. Learned Advocate for the applicant/injured (PW-2) submitted that if this Court is inclined to enhance the sentence by way of fine then the fine awarded to all the accused together should be Rs.2, 00, 000.00 and it be made payable to the applicant (PW-2) by way of compensation. Learned Advocate for the accused submitted that considering the financial position of the accused the fine amount may not be more than Rs.1, 00, 000.00. Learned APP echoed the submissions advanced on behalf of the learned Advocate for the accused/non-applicant Nos. 2 to 5. 11. I have given thoughtful consideration to the submissions advanced by learned Advocates for the parties. On going through the record and proceedings, I am satisfied that the sentence awarded on modification of the sentence was highly disproportionate to the gravity and seriousness of the crime. 2 to 5. 11. I have given thoughtful consideration to the submissions advanced by learned Advocates for the parties. On going through the record and proceedings, I am satisfied that the sentence awarded on modification of the sentence was highly disproportionate to the gravity and seriousness of the crime. Learned Additional Sessions Judge modified the order with regard to the substantive sentence passed by the learned Magistrate and instead of two years rigorous imprisonment, awarded the imprisonment till rising of the Court. Learned Sessions Judge while modifying the substantive sentence was required to take into consideration the gravity and seriousness of the crime and in any case should have increased the fine amount and directed the same to be paid to the applicant/injured by way of compensation. 12. The incident in question occurred in the year 2002. Learned Magistrate had convicted and sentenced the accused on 1/11/2007. Learned Sessions Judge decided the appeal on 9/12/2016. The parties are related to each other. At the relevant time the land dispute was pending between them in the civil Court. The motive for the assault was the said civil dispute pending in the Court. It is to be noted that the accused have faced the ordeal of this prosecution for near about 21 years. The damocles sword in the form of sentence kept hanging over their neck from 1/11/2007 till 9/12/2016. In my view, this ordeal faced by the accused would be enough to maintain the order passed by the learned Sessions Judge with regard to the substantive sentence. The court in such cases has to be careful in balancing the interest of the victim/injured. The victim/injured cannot be ignored while deciding the prosecution case. In this case, the applicant/injured (PW-2) had suffered serious injuries. His three teeth were dislocated. He had sustained a mandible fracture to his lower jaw. He was admitted in the hospital for quite long period. His brother was also injured. Learned Sessions Judge, while modifying the substantive sentence, should have taken care of the interest of the applicant/injured. Learned Judge has completely lost site of this aspect. Therefore, I am constrained to observe that the sentence awarded was disproportionate to the gravity of the offence committed by the accused. Learned Sessions Judge could have maintained the balance by imposing the fine amount. Learned Judge has completely lost site of this aspect. Therefore, I am constrained to observe that the sentence awarded was disproportionate to the gravity of the offence committed by the accused. Learned Sessions Judge could have maintained the balance by imposing the fine amount. In my view, considering the above facts instead of enhancing substantive sentence it would just and proper and in the interest of the accused and applicant/injured to award reasonable sentence by way of fine and with the direction to pay the same to the applicant/injured, as a compensation. 13. After giving thoughtful consideration, in my view, the non-applicant Nos. 2 to 5 would be required to be sentenced to pay a fine of Rs.50, 000.00 each. Accordingly, the sentence by way of fine is enhanced. The accused Nos.1, 2, 4 and 5/non-applicant Nos. 2 to 5 are sentenced to pay fine of Rs.50, 000.00 each. They shall deposit the fine within three months from today. The fine deposited by the accused be paid to the applicant/injured, as a compensation. Learned Magistrate shall see that as and when the amount is deposited, the applicant/injured be informed about the same. 14. If the accused fail to pay the fine then in default they shall suffer simple imprisonment for one year. 15. The revision is allowed and disposed of in the above terms. 16. Rule accordingly. No order as to costs.