1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.646 OF 2008 Dhondiram s/o Radhaji Ghorpade, age: 45 years, Occ: Labourer, R/o Bhushan-Nagar, Ahmednagar, District Ahmednagar. Petitioner Versus 1 The State of Maharashtra 2 Laxmi w/o Vijay Ghorpade, age: 26 years, Occ: Household, R/o Madhavnagar, near Bhushannagar, Kedgaon, Tq. & District Ahmednagar. Respondents Mrs.S.S.Jadhav, advocate for the petitioner. Mr.V.H.Dighe, A.P.P. for Respondent No.1. Mr.P.S.Koshti, advocate holding for Mr.P.S.Shinde, advocate for Respondent No.2. CORAM: R.M.BORDE, J. DATE : 26th June, 2009. ORAL JUDGMENT: 1 Appellant herein is raising exception to the judgment and order of conviction and sentence recorded by Additional Sessions Judge, Ahmednagar, on 05.04.2008 in Sessions Case No.125/2007. Accused- appellant has been held guilty for the offence punishable under Section 307 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.5000/-, in default, to suffer 2 simple imprisonment for one year. The trial Court has also directed to pay an amount of Rs.5000/- to complainant Laxmi Vijay Ghorpade, as compensation, as provided under Section 357 (1) of the Code of Criminal Procedure. 2 The alleged incident had taken place on 04.03.2007 at about 9.00 p.m. at the house of complainant Laxmi Vijay Ghorpade. Accused-appellant is father-in-law of complainant. He is also related to complainant as her maternal uncle. He used to reside near the house of complainant. Name of husband of complainant is Vijay Dhondiram Ghorpade. According to complainant, on the day of incident, at about 9.00 p.m., complainant had gone to sleep at her house. She awakened on receiving burn injuries, which were caused due to pouring of kerosene on her person and setting her on fire. She saw accused running away from her house, when she woke up from sleep as a result of sustaining burn injuries. Husband of the complainant tried to extinguish fire by putting quilt on her person. As the complainant received burn injuries on her chest, neck and on both hands, arms, she was taken to Civil Hospital, Ahmednagar. According to the doctor, she sustained 18% burn injuries. On 05.03.2007, statement of complainant was recorded by Naib Tahsildar. Police initiated investigation after recording statement of the complainant and registered crime bearing Crime No.54/2007. After completing investigation, police submitted charge sheet against the accused. The case being triable by the Court of Sessions, same was committed to the Sessions Court at Ahmednagar. At trial, accused pleaded not guilty to the charge. Defence of the accused is of denial. 3 3 After recording evidence of prosecution and statement of accused under Section 313 Cr.P.C., trial Court came to the conclusion that the prosecution has established complicity of the accused in the alleged crime and as such, on conviction, accused was sentenced for the term of imprisonment, as stated above. 4 With the assistance of learned Counsel for respective parties, I have perused the ocular evidence recorded in the matter. On consideration of the evidence placed on record by the prosecution as well as considering the judgment recorded by the trial Court, I am of the opinion that the trial Court has taken a reasonable view of the matter. The order of conviction recorded by the trial Court, therefore, needs no interference. 5 So far as imposition of sentence is concerned, Respondent No.2 – complainant was noticed in respect of the appeal. Respondent No.2 has caused her appearance through Counsel and tendered affidavit-in-reply. It is contended by Respondent No.2-injured witness that the accused, who is undergoing sentence, is her father in law and is also related to her as her maternal uncle. It is stated that after his enlargement on bail, during the pendency of trial, relations between the victim and accused were cordial. It is also stated in the affidavit-in-reply that accused is behind bar after recording order of conviction by the trial Judge on 05.04.2008. He was also behind bar as an under-trial prisoner during the period from 06.03.2007 to 18.06.2007. It is also contended that considering the relationship between complainant and accused and considering the fact that accused is sufficiently punished for his misdeeds, 4 a lenient view may be taken in the matter of imposition of sentence. 6 While directing imposition of sentence of rigorous imprisonment for ten years, trial Court was much influenced by the act of accused of having visited the Court in drunken condition. It is recorded in paragraph 22 of the judgment that accused came before the Court in drunken condition and in that condition only he has prayed the Court for adopting a lenient view. It is but natural for the Court, in these circumstances, to award harsh punishment. 7 Considering nature of allegations as well as considering the affidavit-in-reply tendered by the complainant, I am of the opinion that a lenient view is called for in the matter. It is also necessary to take into account that as a result of the act of accused, complainant has sustained 18% injuries. It is reported that the accused was taken in custody on 06.03.2007 and he was released on bail on 18.06.2007. After recording the order of conviction and sentence by the trial Court, he was arrested on 05.04.2008 and he is still in jail. Thus, accused-appellant is behind bar for a term of more than one year and three months. He has also undergone imprisonment for a period of three and half months as an under-trial prisoner. Taking into consideration all these aspects, sentence of 18 (eighteen) months of imprisonment would suffice the purpose. The accused-appellant has undergone sentence of imprisonment for a period more than 18 months and as such, he is entitled to be set at liberty. 8 Criminal Appeal is, thus, partly allowed. The judgment and order of conviction recorded by Additional Sessions Judge, Ahmednagar, 5 in Sessions Case No.125/2007, convicting appellant-accused Dhondiram s/o Radhaji Ghorpade for offence punishable under Section 307 of I.P.C., is maintained. However, the order of sentence is modified and accused is sentenced to suffer rigorous imprisonment for a period, which he has already undergone. So far as fine amount is concerned, the complainant has stated in her affidavit-in-reply that she need not be paid amount of compensation as she has received financial benefits from the accused. The amount of fine of Rs.5000/-, imposed against accused-appellant, be appropriated towards the fine amount and complainant need not be paid towards compensation under Section 357(1) of Cr.P.C. (R.M.BORDE) JUDGE ******* adb/criappeal64608