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SUPREME COURT OF INDIA
AJAY RASTOGI, ABHAY S. OKA, JJ.
Bhagwan Narayan Gaikwad – Appellant
Versus
The State of Maharashtra and Others – Respondents
Criminal Appeal No. 1039 of 2021, SLP (Crl.) No. 7001 of 2021, Diary No. 14956 of 2021
Decided On : 20-09-2021
(A) Indian Penal Code, 1860 – Section 326 – Criminal Procedure Code, 1973 – Section 357 – Grievous hurt – Conviction and sentence – Award of Rupees Two Lakhs as monetary compensation to victim – Injuries were brutal in nature – Appellant has been rightly held guilty and convicted for offence under Section 326 IPC – Substance of compromise and statement of fact is completely superfluous in the mechanical form and nothing elicit about 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 contents are stereotyped – In facts and circumstances of given case, for deciding just and appropriate sentence to be awarded for an offence, aggravating and mitigating factors and circumstances of which crime has been committed are to be taken into consideration and to be delicately balanced on the basis of relevant circumstances in a dispassionate manner by Court – Brutality is apparent on face of record – Such a brutality cannot be ignored which is not against individual but crime is against society which has to be dealt with sternly – Court not inclined to give any benefit of alleged compromise for interfering in sentence awarded by High Court in impugned judgment – Appeal dismissed. (Paras 18, 23, 25, 26, 27, 31 and 32)
(B) Criminal Law – Sentence – Giving punishment to wrongdoer is heart of criminal delivery system, but there is no legislative or judicially laid down guidelines to assess trial Court in meeting out just punishment to accused facing trial before it after he is held guilty of charges – Nonetheless, this Court takes into account a combination of different factors while exercising discretion in sentencing, that is proportionality, deterrence, rehabilitation, etc. (Para 28)
(C) Criminal Procedure Code, 1973 – Section 320 – Compromise of case – Compromise if entered at later stage of incident or even after conviction can indeed be one of factor in interfering sentence awarded to commensurate with nature of offence being committed to avoid bitterness in families of accused and victim and it will always be better to restore their relation, if Possible – But compromise cannot be taken to be a solitary basis until other aggravating and mitigating factors also support and are favourable to accused for moulding sentence which always has to be examined in facts and circumstances of case on hand. (Para 29)
Facts of the case:
Instant appeal is directed against the judgment and order dated 10th June, 2021 passed by High Court of Bombay in Criminal Appeal No. 136 of 1996 upholding conviction for offence punishable under Section 326 IPC and sentenced to undergo rigorous imprisonment for 5 years with a fine of Rs. 10,000/- and under Section 357 of Code of Criminal Procedure of Rupees Two Lakhs as a monetary compensation to the victim.
Findings of Court:
This Court cannot be oblivious of this fact that the injured victim has been crippled for life and pursuing his daily chores with 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 absence of immediate medical attention, death was certain and that was the reason his dying declaration was also recorded during that point of time.
Result : Appeal dismissed.
JUDGMENT :
AJAY 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 offence punishable under Section 326 IPC and sentenced to undergo rigorous imprisonment for 5 years with a fine of Rs. 10,000/- and under Section 357 of Code of Criminal Procedure (Cr.P.C.) 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 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 certificate Ex.59 issued by the Primary Health Centre, Tembhurni, shows the injuries as follows:
(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.
(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 (PW-7) 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 26th February, 1996. On appeal being preferred collectively by all the 12 accused persons, the High Court under its impugned judgment dated 10th 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 years would be unjustified but his contention was repelled after assigning reasons in the impugned judgment:
In cases of non-compoundable offenses, while the conviction cannot be set aside due to compromise, the sentencing may be adjusted based on reconciliation between parties and circumstances such as pre....
The court may consider amicable settlements in non-compoundable offences for sentencing, reducing the sentence based on the absence of further disputes and the passage of time.
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