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Supreme Court of India
Bhagwan Narayan Gaikwad vs The State Of Maharashtra on 20 September, 2021Author: Ajay Rastogi
Bench: Ajay Rastogi, Abhay S. Oka
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 1039 OF 2021
(Arising out of SLP(Criminal) No(s). 7001 of 2021)
(Diary No. 14956/2021)
BHAGWAN NARAYAN GAIKWAD ….APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA AND ORS. ….RESPONDENT(S)
JUDGMENT
Rastogi, J.
1. Leave granted.
2. The instant appeal is directed against the judgment and order
dated 10th June, 2021 passed by the High Court of Bombay in
Criminal Appeal No. 136 of 1996 upholding conviction for the
Signature Not Verified
Digitally signed by
offence punishable under Section 326 IPC and sentenced to undergo
NEETU KHAJURIA
Date: 2021.09.20
18:02:25 IST
Reason:
rigorous imprisonment for 5 years with a fine of Rs. 10,000/ and
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under Section 357 of Code of Criminal Procedure(CrPC) of Rupees
Two Lakhs as a monetary compensation to the victim.
3. The prosecution case is that on 13th December 1993, at around
5.30 p.m., Subhash Yadavrao Patil(injured victim) was returning to
Malegaon from Tembhurni on bicycle. While he was near to the
main road, the accused persons arrived there in the tractor and they
started pelting stone at him. The stone hit his back and one of the
accused gave a blow of Satur on his leg below the left knee. While he
started running, he fell down and the present accused appellant
gave blow by lethal weapon(sword) on his right leg below the knee
and due to the brutal blow, it was almost mutilated and while trying
to avoid the blow of sickle, the injured tried to avoid by raising his
right hand and the blow hit his right arm below the elbow due to
which it was detached and there was profuse bleeding from the
injuries and he was immediately taken to the hospital for medical
assistance.
4. Dr. Vijay Shivram Upase(PW 8) who examined the victim
deposed that when the patient was brought to the hospital, his lower
right leg below knee was completely detached and severed and right
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arm below the elbow was hanging by the skin. He had bandaged the
injuries only to stop bleeding and cover the wounds. That all the
vessels of the veins were open and arteries of injury no. 1 and 4 were
cut. There was profuse bleeding and without immediate medical
intervention, the cumulative effect of all the injuries suffered by the
victim would have resulted into death. Injury nos. 1 and 4 were
dangerous to life.
5. The injuries were not only brutal but the injured was left in
such a critical condition that upon seeing him, PW 22 had
immediately arranged for recording his dying declaration by Dr.
Pawale(PW 12) Special Executive Magistrate. PW 22 further stated
that it would be only the strong will of the victim and with the
immediate medical care that he could survive. The medical
certificateEx.59 issued by the Primary Health Centre, Tembhurni,
shows the injuries as follows:
“i. Sharp amputated curt over right lower leg 1/3rd. It was
completely cut.
ii. Incised wound over ½ above injury no.1 front part, size 4
½” x ½”.
iii. Incised wound ½ % above injury No.1 outer side, 1”x ¼”.
iv. Sharp amputated cut over 1” below right fore arm, middle
part, arm completely cut.
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v. Incised abrasion left side back of ear ¼” x ¼”.
6. Initially, 12 accused persons faced the trial and were convicted
by the learned trial Judge for offence punishable under Section 326
read with Section 149 IPC for causing grievous hurt to Subhash
Yadavrao Patil(PW7) and each of them was sentenced to suffer 7
years R.I. and fine in sum of Rs. 1000/ each, in default, to suffer
R.I. for the period of six months by judgment dated 26 th February,
1996. On appeal being preferred collectively by all the 12 accused
persons, the High Court under its impugned judgment dated 10 th
June, 2021 found the accused A3, A4, A10 and A12 including the
present appellant(A1) guilty and because of lack of material against
the other accused persons, they were acquitted under the impugned
judgment. The appeal stood abated in respect of four accused
persons, A3, A4, A10 and A12.
7. The submission made before the High Court by learned counsel
for the appellant was that the incident is of the year 1993 and the
appellant was on bail during trial and also pending appeal before the
High Court and to revert back to suffer substantive sentence after 28
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years would be unjustified but his contention was repelled after
assigning reasons in the impugned judgment:
“30. It was the specific submission by the respective counsel
appearing for the appellants that the incidence is of the year 1993
and that the appellants are on bail since 1996 and that, to revert
them back to suffer substantive sentence would be unjustified after
23 years. However, the court cannot be oblivious of the fact that the
complainant has survived in the hope of justice with a prosthetic arm
and leg for all these years and his hand and leg had to be amputated.
35. The victim has been crippled for life. It is true that he is pursuing
his daily chores with a prosthetic arm and leg but he has lost his
vital organs of his body. The doctors who had examined PW7 have
clearly stated that in the absence of immediate treatment, the death
was certain. There is no reason to doubt the testimony of the victim
which is duly corroborated by the PW8.”
8. This was the primary reason for which while upholding
conviction under Section 326 IPC, the appellant is sentenced to
rigorous imprisonment for 5 years and to pay under Section 357
CrPC of Rs. 2 lakhs as a monetary compensation to the victim.
9. The application for exemption from surrendering was rejected
by the learned Chamber Judge by an Order dated 14 th July, 2021.
Only thereafter, the appellant has surrendered on 5 th August 2021.
It is informed to this Court that he has undergone the actual
sentence by this time of 5 months.
10. The record indicates that no notice was issued by this Court
and when the matter was listed for admission, Mr. Mahesh
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Jethmalani, learned senior counsel for the appellant has not argued
on merits and confined his submission for compounding the
sentence for the reason that a compromise has been entered
between the appellant and the injured victim and in support thereof,
a compromise affidavit of the victim dated 13 th July, 2021 has been
placed on record to justify that the victim has no desire to make the
appellant undergo the remaining sentence and keeping in view the
peace and harmony between the families, it has been requested by
the complainant victim to compound the offence and submits that
the appellant be released on the sentence undergone.
11. Learned senior counsel on the strength of the compromise
affidavit placed on record submits that when the parties have settled
their disputes amicably and the relations of the families are very
cordial and they are now closely related having matrimonial
relations with each other’s family and the incident has occurred due
to misunderstanding and on the spur of the moment and submitted
that the parties have jointly prayed, in the interest of peace and
harmony between both the families and as requested by the
complainant to compound the offence and in the interest of justice,
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he may be released on the sentence undergone and has placed
reliance on the judgment of this Court in Ram Pujan and Others
Vs. State of Uttar Pradesh1 and Murali Vs. State represented by
Inspector of Police2.
12. Learned counsel for the complainant has joined hands with the
appellant and submits that a joint affidavit has been filed by the
injured complainant(PW7) and he has been instructed to inform
this Court that in terms of Para 3 of the affidavit of the injured
victim, the parties have restored their cordial relations and also
prays that the appellant be released on the period of sentence
undergone.
13. Per contra, Mr. Sachin Patil, learned counsel for the State
opposed the request made by the appellant and submits that the
ultimate object of the criminal justice system is to protect the society
and to deter the criminal in achieving the avowed object of law by
imposing appropriate sentence. It is always expected that the courts
would operate the sentencing system so as to impose such sentence
which reflects the conscience of the society and the sentencing
1 1973(2) SCC 456
2 2021(1) SCC 726
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process has to be stern where it should be and proceeding on such
premise, of alleged compromise obtained after the impugned
judgment of the High Court dated 10th June, 2021 upholding
conviction under Section 326 IPC and sentenced to undergo 5 years
of rigorous sentence, such compromise after 28 years of the
incident, according to him, is obtained by coercion or inducement
not only to harm the criminal justice system but it undermines the
public confidence of the efficacy of law and society.
14. Learned counsel further submits that the learned trial Judge
and also the High Court, while imposing sentence, has taken note of
the nature of the incident, their related factors in which the crime
has been committed and has delicately balanced the relevant
circumstances in a dispassionate manner which ordinarily is not to
be interfered because of the alleged compromise being obtained and
cordial relations overnight are developed after 28 years of the
incident.
15. Learned counsel further submits that the incident is of 13 th
December 1993, the learned trial Judge convicted the accused by its
judgment dated 26th February, 1996 and appeal was preferred before
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the High Court at the instance of the appellant in the year 1996
which came to be decided in June, 2021, and the appellant was on
bail throughout, cordial relations between the families never came
forward but only after conviction has been upheld and the appellant
now has to undergo sentence, such compromise affidavit has been
placed on record to justify in avoiding sentence which ordinarily
attaches no credence and submits that the compromise affidavits
which are being filed, its bonafide and genuineness is to be recorded
in the facts of each case and submits that looking to the injury of
permanent disability which the complainant has suffered, the
present appellant despite a shield of compromise on record deserves
no indulgence.
16. We have given our thoughtful consideration to the arguments
advanced on behalf of the parties and with their assistance perused
the material available on record.
17. It is not in dispute that the offence punishable under Section
326 IPC is noncompoundable as per Section 320 CrPC. The case of
the prosecution is that the appellant attacked the injured victim(PW
7) with a lethal weapon(sword) which had caused permanent nature
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of disability and the brutality is apparent on the face of record. His
right arm and leg were chopped off during the course of crime which
occurred on 13th December, 1993. It was only because of the strong
will and immediate medical treatment extended to the victim that he
could survive. It was even stated by the treating Doctor that in the
absence of immediate medical treatment, his death was certain.
18. After going through the record of the case and the concurrent
finding of fact which has been recorded by the learned trial Judge
and confirmed by the High Court in the impugned judgment,
although no submissions have been made by the learned counsel for
the appellant on merits of the matter but still for our own
satisfaction, we have gone through the record and in our considered
view, the appellant has been rightly held guilty and convicted for
offence under Section 326 IPC.
19. Learned counsel for the appellant has restricted his submission
only for sentencing taking defence of the compromise dated 13 th
July, 2021 entered into between the parties but the fact is that after
he has been convicted under Section 326 IPC and sentenced to 5
years rigorous imprisonment under the impugned judgment of the
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High Court dated 10th June 2021, all such family relations came on
the ground and he has hardly undergone 5 months of sentence as
on the date as informed to this Court.
20. This Court considers it appropriate to extract para 3 of the
compromise affidavit filed by the victim dated 13 th July, 2021 as
follows:
“3. That the deponent further submits that the incident in question
took place on 13/12/1993 i.e., almost before 28 years due to
misunderstanding and in the spur of moment. The petitioner and the
deponent to the same clan and they all have in same Village and with
passage of time, the relations between the petitioner and the deponent
have become very cordial. The petitioner and the deponent are now
very closely related and are having matrimonial relations with each
other family. The petitioner’s and deponent’s families participate in the
functions of each other’s. With the huge time gap, the grudges
amongst each other have vanished away and have taken a shape of
friendship. The petitioner is 65 year old person suffering from heart
disease and requires medical help and attention regularly. They have
old age parents wife and children to look after, their entire family
would suffer irreparable loss if the petitioner go behind the bars at this
stage. The petitioner has suffered imprisonment at the time of trial as
well as after conviction till the time bail was granted to him by the trial
court and high court. The deponent does not have a slightest desire to
make the petitioner undergo the remaining sentence. Therefore, in the
interest of both the parties and so also in the interest of the peace and
harmony between both the families, the complainant has filed this
affidavit permission to compound the offence.”
21. The threeJudge Bench of this Court in Ram Pujan and
Others(supra) and Murli(supra) has recorded its satisfaction that
the compromise has not been obtained out of coercion and
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inducement and entered with free will without any
reservation/caveat certainly be acted upon and can be one of the
mitigating factor to be considered by altering the sentence in
question.
22. We are in full agreement on legal principles and on facts which
has been noticed by this Court in the judgment referred to supra.
But we are not being able to record our satisfaction on the contents
of the compromise which has been obtained overnight after
conviction under Section 326 IPC being confirmed by the High Court
under the impugned judgment for the incident of December 1993.
23. The substance of what has been referred to in paragraph 3 of
the compromise and noticed by us, the statement of fact is
completely superfluous in the mechanical form and nothing elicit
about the earlier relations, if any, or when such cordial relations or
what kind of family relations later on have been developed, all such
facts are completely missing and the contents are stereotyped,
appears to be copied from paragraph 6 of the judgment in Mohd.
Ibrahim Vs. State of Karnataka and Others(Criminal Appeal No.
825 of 2018) decided by this Court on 5th July, 2018.
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24. In the recent judgment in Murali (supra), this Court has taken
into consideration not only the compromise but the other
aggravating and mitigating circumstances in which the crime has
been committed including the fact that the accused has undergone
more than half the sentence and in totality of the facts and
circumstances, this Court has interfered and molded the sentence.
25. In the facts and circumstances of the given case, for deciding
just and appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances of which the
crime has been committed are to be taken into consideration and to
be delicately balanced on the basis of the relevant circumstances in
a dispassionate manner by the Court.
26. While disposing of the appeal preferred at the instance of the
present appellant, the High Court has recorded its sufficient reasons
while convicting him under Section 326 IPC and not only the fact
that it was a premeditated attempt of the appellant, he assaulted
the victim with the sword and chopped of his right leg below the
knee and right forearm below the elbow and the brutality is
apparent on the face of record.
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27. This Court cannot be oblivious of this fact that the injured
victim has been crippled for life and pursuing his daily chores with
the prosthetic arm and leg and has lost vital organs of the body and
became permanently disabled. This has been stated by PW 8 that in
the absence of immediate medical attention, death was certain and
that was the reason his dying declaration was also recorded during
that point of time, in our considered view, such a brutality cannot be
ignored which is not against the individual but the crime is against
the society which has to be dealt with sternly.
28. Giving punishment to the wrongdoer is the heart of the
criminal delivery system, but we do not find any legislative or
judicially laid down guidelines to assess the trial Court in meeting
out the just punishment to the accused facing trial before it after he
is held guilty of the charges. Nonetheless, if one goes through the
decisions of this Court, it would appear that this Court takes into
account a combination of different factors while exercising discretion
in sentencing, that is proportionality, deterrence, rehabilitation, etc.
29. The compromise if entered at the later stage of the incident or
even after conviction can indeed be one of the factor in interfering
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the sentence awarded to commensurate with the nature of offence
being committed to avoid bitterness in the families of the accused
and the victim and it will always be better to restore their relation, if
possible, but the compromise cannot be taken to be a solitary basis
until the other aggravating and mitigating factors also support and
are favourable to the accused for molding the sentence which always
has to be examined in the facts and circumstances of the case on
hand.
30. As already observed, we have not be able to record our
satisfaction in reference to the kind of compromise which has now
been obtained and placed on record after 28 years of the incident
and this Court cannot be oblivious of the sufferings which the victim
has suffered for such a long time and being crippled for life and the
leg and arm of the victim are amputated in the alleged incident
dated 13th December, 1993 and since then he has been fighting for
life and is pursuing his daily chores with a prosthetic arm and leg
and has lost his vital organs of his body and became permanently
disabled and such act of the appellant is unpardonable.
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31. In totality of the facts and circumstances of the case, we are
not inclined to give any benefit of the alleged compromise dated 13 th
July, 2021 for interfering in the sentence awarded by the High Court
in the impugned judgment which at least does not call for
interference of this Court.
32. As a result, the appeal is dismissed accordingly.
33. Pending application(s), if any, stand disposed of.
…………………………….J.
(AJAY RASTOGI)
……………………………..J.
(ABHAY S. OKA)
NEW DELHI
SEPTEMBER 20, 2021
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