Bhagwan Narayan Gaikwad vs The State Of Maharashtra on 20 September, 2021


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Supreme Court of India

Bhagwan Narayan Gaikwad vs The State Of Maharashtra on 20 September, 2021

Author: 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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