Cri. Appeal 238/1999 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 238/1999 The State of Maharashtra, through P.S.O., Mehunbare Police Station, Jalgaon. ..Appellant. Versus 1 Suklal Dharma Pagare, 2 Arjun Gobaji Pagare, 3 Bhimrao Govaji Pagare, 4 Bhimrao Rama Pagare, 5 Nimbha Dhondu Pagare, 6 Dilip Arjun Pagare, 7 Dhula Soma Pagare 8 Nana Arjun Pagare All r/o Bahal, Tq. Chalisgaon, Dist. Jalgaon. ...Respondents. Mr. S.N. Kendre, A.P.P. for appellant. Mr. Joydeep Chatterjee, Advocate for respondents No. 1, 3,5,6 and 8 Mr. P.S. Shinde h/f Mr. S.G. Shinde, Advocate for respondent No.4. WITH CRIMINAL REVISION APPLICTION NO. 83/1999 Supdu Puna Pagare, Age : 67 years, Occu. Teacher (Pensioner), R/o Dhule Road Behind Art, Science College, Adarshanagar Chalisgaon, Tq. Chalisgaon Dist. Jalgaon. ...Appellant. Versus Cri. Appeal 238/1999 2 1 The State of Maharashtra, through the Government Pleader, Aurangabad. 2 Suklal Dharma Pagare, 3 Arjun Gobaji Pagare, 4 Bhimrao Govaji Pagare, 5 Bhimrao Rama Pagare, 6 Nimbha Dhondu Pagare, 7 Dilip Arjun Pagare, 8 Dhula Soma Pagare 9 Nana Arjun Pagare, All r/o Bahal, Tq. Chalisgaon, Dist. Jalgaon. ..Respondents. Mr. Paresh Patil, for appellant. Mr. S.N. Kendre, A.P.P. for respondent No.1/State. Mr. Joydeep Chatterjee, for respondents No.,2,4,6,7 and 9. Mr. P.S. Shinde h/f Mr. S.G. Shinde, for respondent No.5. CORAM : A.V. NIRGUDE, J. Date : 21st December, 2010. ORAL JUDGMENT:- 1 The State of Maharashtra has filed this appeal and the original complainant -the victim of the crime- the prosecution witness No.5 Supdu has filed Cri. Revision Application No. 83/1999 against the judgment and order passed by the learned Sessions Judge, Jalgaon dated 13/10/1998 in Cri. Appeal No. 11/1992 and thereby essentially reducing the substantive sentence awarded to the respondents to the simple imprisonment till rising of the Court and increasing the fine amount substantially and to make Rs.5000/- payable to the victim of the Crime prosecution witness No.5. In order to avoid confusion, I would refer the respondents as Cri. Appeal 238/1999 3 the “respondents” and the revision applicant as prosecution witness No.5 or the victim of the Crime. During the pendency of the present proceeding, respondents No.2 and 7 died and the appeal and the revision therefore, stood abated as against them. The respondents stood trial in Regular Criminal Case No. 149/1987 before the learned Judicial Magistrate (First Class), Chalisgaon for the offences punishable under Section 143, 147, 148, read with section 149 and under sections 325, 341, 504, 506 of Indian Penal Code. 2 The facts leading to the case can in short be narrated as under. Prosecution witness No.5 Supdu, his brother Mahendra and his children were ostracized by the respondents and other members of their caste because they opposed not only a child marriage but even lodged complaint against them with the police and thereby destroyed the possibility of the matrimony. It was the minor daughter of the deceased respondent No.2 whose marriage was sought to be settled in June, 1987. On 11/06/1987, the members of the community to which the parties to the litigation belonged, met in a meeting in which it was proposed that for the purpose of marriage of the minor daughter of the deceased respondent No.2, the community should collect funds. The proposal was opposed by the prosecution witness No.5 and his family members. There occurred quarrel between these two groups. Thereafter, on 16/06/1987 the respondents and the other members of the community held a meeting and passed a resolution to out-caste the family members of the prosecution witness No.5. It seems the prosecution witness No.5 and his family members became aware of this hostility of their own community members towards them. On 25/06/1987 at about 9.00 a. m., the prosecution witness No.5, his Cri. Appeal 238/1999 4 son Mahendra were walking to the S.T. stand for catching a bus to Chalisgaon but before they could reach near the bus, the respondents attacked them. They were assaulted with iron rod and sticks. Seeing them charging towards them, the prosecution witness No.5 and his brother Mahendra started running towards their house but they were chased and were mercilessly beaten up. The respondents' main target was the prosecution witness No. 5 who sustained three fractures at limbs and loosening of two teeth. His brother Mahendra sustained minor injuries so also the other witnesses sustained minor injuries. For the purpose of deciding this appeal, the nature of injuries suffered by these victims, is required to be enumerated and it is as under. P.W. Mahendra suffered :- i) Contusion over left thigh 4c.m.x1 c.m. ii) Contusion over left Hip 2 c.m. iii) Abrasion over right knee ½ inch dia. iv) C.L.W. Over right forehead 1 c.m. X 2 c.m. v) Evidence of beating over left scapular region right side chest, right big toe clinically tenderness. P.W.4 Anilkumar Pagare suffered:- i) Contused lacerated wound of 3x2x3 c.m. Skin deep along right eye brow, fresh bleeding present. ii) Abrasion of 4c.m. X 2 c.m. Over left iliac region. iii) Complaint of pain in lower teeth. iv) Abrasion 2 c.m. X 3 c.m. Over left elbow joint. v) Abrasion 2 c.m. X 1 c.m. Over right elbow joint anteriorly. vi) Liner scratch 3c.m.x 1 c.m. X ½ c.m. over left knee joint anteriorly. P.W. 5 Supdu Pagare suffered :- i) Compound fracture Tibia Middle third right with C.L.W.. ii) Compound fracture ulna Middle third right with C.L.W. Cri. Appeal 238/1999 5 iii) Compound fracture Scapula left with contusion. 3 The learned Magistrate believed the prosecution case and as said above, convicted the respondents for the offences punishable under Section 143, 147, 148, 325 read with section 149, 324 read with Section 149, 323 read with Section 149, 341 read with Section 149 of Indian Penal Code and awarded them with various terms of the rigorous imprisonment. The longest term of rigorous imprisonment was awarded to the present respondents for the offence punishable under Section 325 read with Section 149 of Indian Penal Code and that was for two years. The other sentences were of smaller duration and I do not consider it necessary to enumerate them here. 4 The respondents filed Criminal Appeal No. 11/1992 and the learned Sessions Judge, Jalgaon held that the prosecution had proved its case except the offence under Section 324 of Indian Penal Code. The learned Sessions Judge maintained the conviction of the respondents under Sections 147, 148, 325, 323, 325 read with Section 149 of Indian Penal code. However, it seems the learned judge sentenced the respondents for each of the offences to suffer simple imprisonment till rising of the Court and to pay a fine of Rs. 500/- with default clause. The learned judge in para 18 of the judgment while discussing the question of sentence, observed that the matter was settled amicably in village and in para 20, he observed that sending the appellants to jail after 11 years and that too when the relations of the complainant and appellants had become normal, is not proper. 5 The State of Maharashtra as well as the prosecution witness No.5 took strong objection to these observations. They asserted that Cri. Appeal 238/1999 6 the learned judge had no reason to hold that the parties had amicably settled dispute between themselves. They pointed out that there was in fact no such settlement. Even the respondents admitted this factual position. On the basis of it, thus there is no dispute between the parties that the reason mentioned in the impugned judgment for reducing the substantive sentence to simple imprisonment till rising of the Court was erroneous. 6 However, the learned advocate appearing for the respondents still pleaded that this is a fit case where the respondents could not be sent to jail to undergo substantive sentence. He pointed out that at the time of incident, the respondents had a valid reason to get annoyed with the prosecution witness No.5 and his family members. They were apparently going against the customs of the caste and due to their intervention, the engagement of the deceased respondent No.2’s minor daughter had broken. The incident took place thereafter within a period of 15 days or so and he asserted that the ultimate incident of assault was result of provocation and having regard to the social status of the parties, the Court should take a lenient view of the same. He also pointed out that since the incident, 23 years have passed, both the parties no doubt, he said suffered due to litigation. He pointed out that two respondents are already dead. The Respondent No.3 Bhimrao is now 67 years old and the others are also pretty senior. Even the prosecution witness No.5 is now quite old. He is almost 78 years old. He pointed out further that the respondents tried to get the matter settled amicably at this belated stage but in vain. He said, the offer of compromise was rejected by the prosecution witness No.5 and his family members. The learned advocate appearing for the respondents in these circumstances, Cri. Appeal 238/1999 7 suggested that this is an appropriate case where the Court should utilize the powers under Section 357 (3) of Cr.P.C. and direct the respondents to pay substantial compensation to the prosecution witness No.5 in view of reducing their substantive sentence to the period which they have undergone. He informs that the respondents were in custody during investigation stage for a couple of days. 7 In support of his contention, he placed reliance on the judgment of Supreme Court in the case of Hari Kishan and State of Haryana vs. Sukhbir Singh and others AIR 1988 Supreme Court. In this judgment, the Supreme Court virtually took a step forward in the Criminal justice system and recommended to all courts to exercise the power of awarding compensation to victims of offence conferred by Section 357 of Cr.P.C. liberally so as to meet the ends of justice. The facts before the Supreme Court were thus – it was a case of attempt to commit murder. The learned judge of the trial Court convicted seven accused for the offence punishable under Section 307 read with Section 149 of Indian Penal Code and awarded sentences of rigorous imprisonment of various terms. The accused appealed before the High Court. The High Court acquitted two accused of all the charges giving them benefit of doubt. The High Court acquitted the other accused of the offence punishable under Section 307 read with Section 149 of Indian Penal Code and maintained their conviction under Section 325 read with Section 149, 323 read with Section 149 and under Section 148 of Indian Penal Code. The High Court ordered to release them on probation of good conduct but directed each of them to pay compensation of Rs.2,500/- to the victim of the crime. The victim went before the Supreme Court. The Supreme Court upheld the finding of the High Court of acquitting two accused and acquitting Cri. Appeal 238/1999 8 the other accused of the offence punishable under Section 307 read with Section 149 of Indian Penal code. It confirmed the finding of the High Court that the accused were guilty of offence punishable under Section 325 read with Section 149, 323 read with Section 149 and 148 of Indian Penal Code. The Supreme Court then decided the question as to whether the accused were entitled to benefit of probation of good conduct. Even on this point, the Supreme Court held in favour of the accused. The Supreme Court thereafter decided the next question as to whether the compensation awarded to the victim could be legally sustainable and if so, what should be the proper compensation. In this regard, the Supreme Court observed as under. “This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs. 2,500 as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation. But that can be traced to s. 357 Cr.P.C. Section 357, leaving aside the unnecessary, provides : "357. Order to pay compensation : (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part,the Court may. when passing judgment. order the whole or any part of the fine recovered to be applied- (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence. when compensation is in the opinion of the Court, recoverable by such person in a civil Court; Cri. Appeal 238/1999 9 (3) When a Court imposes a sentence, of which fine does not not form a part, the Court may, when passing judgment. order the accused person to pay, by way of compensation. such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section." 8 The learned Advocate appearing for the respondents placed reliance on these observations and urged the Court to reduce the substantive sentence awarded to them and if required, direct them to pay suitable compensation to the prosecution witness No.5. In this case, the learned Sessions Judge has already invoked powers under section 357 for awarding imposing enhanced fine on the respondents and directing certain amount to be paid to the victim as compensation. But as said above, this was done probably because the learned Sessions Judge was under wrong impressions that the parties had settled the dispute amicably. As said above, the parties have not settled the dispute even today after 23 years of the incident. 9 The question I am asking to myself is if the complainant has not agreed to condone the respondents and to forget and forgive them, is Cri. Appeal 238/1999 10 the Court powerless to utilize the provisions of Section 357 of Cr.P.C. in this case so as to meet ends of justice. In my view, by this time the parties should have settled the dispute amicably between themselves. They belong to one community and are residents of one village. But it seems, the issue of casteism is still burning between them and they are unable to forgive each other. I am not suggesting that the respondents were justified in attacking the prosecution witness No.5 for what he had done then. I think the prosecution witness no.5 and his family members tried to introduce a progressive attitude in the members of their community. I think, what they did was proper. But probably out of over enthusiasm, they lodged a police complaint against the respondents and others, for settling a marriage of a minor girl. They really no reason to be so aggressive against them. But the dispute between the parties is now thing of the past and I think the parties should have settled the case amicably. I think, this is a fit case where I should utilize my powers under section 357 of Cr.P.C. and order the respondents to pay by way of compensation a sum of Rs. 1,00,000/-. In order to achieve this, I will have to allow appeal and increase the fine amount imposed on the respondents appropriately. 10 The learned advocate appearing for the revision applicant placed reliance on two judgments of Supreme Court i.e. (1) Sham Sundar Vs. Puran and another AIR 1991 S.C. 8, and (2) Mangal Singh & Another Vs. Kishan Sing & others AIR 2009 SUPREME COURT 1535. Both these judgments are not useful for the present discussion because they admittedly do not discuss the provision of Section 357 of Cr.P.C. and they did not discuss the judgment of Supreme Court in the case of Harikishan. The Supreme Court in these two judgments held that in the facts and circumstances of this Cri. Appeal 238/1999 11 case, custodial sentence imposed on the accused could not be reduced even though there were mitigating circumstances. I am afraid, the facts of the present case are quite different and as said above, I find it appropriate to utilize the ratio of Harikishan’s case, in this case. ORDER The appeal and revision are partly allowed. The conviction of the respondents for the offences punishable under Sections 147, 148, 325, 323, 341 read with Section 149 of Indian Penal Code is maintained. The respondents are sentenced to pay a fine of Rs.17,000/- each for all the offences. The substantive sentence awarded to them is also maintained but the fine amount is increased. Now for each five offences, each respondent to pay fine of Rs.3,400/-. This means that each respondent shall pay total fine of Rs.17,000/-. Out of said amount, Rs. 1,00,000/- shall be paid to the prosecution witness No.5 – the revision applicant in Criminal revision No. 83/1999. The fine amount shall be deposited in the Court on or before 7th January, 2011. Till the fine amount is deposited, the bail bonds of the respondents shall continue. On depositing of the fine amount, bail bonds shall stand cancelled. (A.V. NIRGUDE, J.) ts k/ok