2006 ALL MR (Cri) 516
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

J.N. PATEL AND R.C. CHAVAN, JJ.

Arun Balkrishna Nirmal & Ors.Vs.State Of Maharashtra

Criminal Appeal No. 207 of 1994,Criminal Appeal No. 282 of 1994,Cri. Rev. App. No. 123 of 1994

24th October, 2005

Petitioner Counsel: Shri. ANIL S. MARDIKAR,Shri. B. N. MOHTA
Respondent Counsel: Shri. A. D. SONAK

(A) Criminal P.C. (1973), S.374 - Appeal against conviction dismissed - Finding of involvement of accused in incident confirmed and matter remanded for imposing sentence - No appeal filed against dismissal of appeal - Appeal arising out of order passed on remand - Accused cannot be heard on merits of the matter - Finding of involvement of convicts in incident of assault on victim cannot be re-agitated. (Para 8)

(B) Criminal P.C. (1973), S.354 - Conviction and imposition of sentence - Accused to be given hearing in matter of sentence - It does not necessarily include hearing counsel - Rejection of application for adjournment would imply that Counsel would be obliged to participate in proceedings and address court rather than go away - Court also observing in judgment that he had heard counsel in matter of sentence - There is not only no reason to disbelieve but also no justification to contradict as record of court speaks for its correctness. (Para 10)

(C) Penal Code (1860), S.307 - Conviction and sentence - Accused inflicting 34 injuries in brutal attack - Victim surviving attack - Maximum sentence under S.307 need not be imposed - Fact that convicts had been living under shadow of imprisonment for 19 years could also be taken into consideration - Reasonable sentence passed by trial court did not call for interference. (Para 11)

(D) Penal Code (1860), S.307 - Conviction and sentence - Mitigating circumstance - Victim himself was convict in murder case is irrelevant and cannot be a mitigating circumstance. (Para 12)

JUDGMENT

R. C. CHAVAN, J. : - These two appeals and criminal revision arise out of the order passed by the learned Additional Sessions Judge, Khamgaon, convicting the three accused persons tried before him in Sessions Case No.8 of 1987 for the offence punishable under Section 307 read with Section 34 of the Penal Code and sentencing them to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- each, or in default to undergo simple imprisonment for three months.

2. Victim Arun alias Arvind son of Laxman Kasture was Sarpanch of Village Bhendwad since about 8 to 9 years before the incident, which took place on 26-9-1986. Election to the Gram Panchayat was held before the incident, at which Arvind defeated accused No.1 Arun Balkrishna Nirmal. On 26-9-1986 at about 8.30 p.m., Arvind was walking with some of his friends towards Village Bhendwad by a cart road. The three accused persons suddenly pounced upon Arvind and started assaulting him. Accused No.1 Arun was armed with a sickle, accused No.2 Prabhakar was carrying an axe with him and accused No.3 Waman was armed with a stick. The trio inflicted as many as 34 injuries on the victim. The persons, who were accompanying the victim, cried for help. Believing that Arvind was dead and noticing that the villagers were rushing from the side of the Village, the assailants bolted from the spot. Arvind was taken to Police Station and from there, to Primary Health Centre, Jalgaon-Jamod, where he was given necessary treatment. Arvind's statement was recorded.

3. Police registered an offence and in the course of investigation, examined several witnesses. They caused incriminating articles to be seized, arrested the accused and after completion of the investigation, sent the charge-sheet to the learned Judicial Magistrate, First Class, Jalgaon-Jamod, who committed the case to the Court of Sessions at Khamgaon.

4. The learned Additional Sessions Judge, Khamgaon, charged the three accused of offence punishable under Section 307 read with Section 34 of the Penal Code. The accused pleaded not guilty and claimed to be tried. In its attempt to bring home the guilt of the accused, the prosecution examined as many as 13 witnesses. After considering the evidence tendered, the learned Additional Sessions Judge acquitted the appellants of the offence punishable under Section 307 read with Section 34 of the Penal Code, but held them guilty of offence punishable under Section 325 read with section 34 of the Penal Code and proceeded to convict the accused of that offence. By his judgment dated 5-7-1990, the learned Additional Sessions Judge sentenced each of the accused to suffer rigorous imprisonment for three years and to pay a fine of Rs.500/- or in default to undergo rigorous imprisonment for two months. He also directed that on realisation of the amount of time, the same shall be paid to victim Arvind.

5. Aggrieved thereby, the accused preferred Criminal Appeal No.181 of 1990 before this Court. Complainant Arvind had also preferred Criminal Revision Application No.199 of 1990. The appeal and the revision application came to be decided by judgment dated 11th and 12th January, 1994. The appeal was dismissed holding that the involvement of the accused in the incident was confirmed. The revision was allowed. The finding of acquittal of the accused of the offence punishable under Section 307 of the Penal Code was set aside. The matter was remanded back to the learned Additional Sessions Judge, Khamgaon, for recording the finding of conviction and awarding sentence to the accused in accordance with law. Accordingly, the case came up for hearing before the learned Additional Sessions Judge again. Considering the finding of this Court that the accused should have been convicted under Section 307 of the Penal Code, the learned Additional Sessions Judge convicted the accused persons of offence punishable under Section 307 of the Penal Code and after hearing them in the matter of sentence, inflicted sentence of rigorous imprisonment for five years and fine of Rs.1,000/- each or in default simple imprisonment for three months more, on the three accused persons.

6. Aggrieved thereby, the accused have preferred an appeal, which is registered as Criminal Appeal No.207 of 1994. The State has preferred an appeal and victim Arvind has preferred a revision for enhancement of sentence, which are numbered as Criminal Appeal No.282 of 1994 and Criminal Revision Application No.123 of 1994 respectively. This judgment disposes of these three proceedings.

7. We have heard Shri. Mardikar, the learned counsel for the convicts; Shri. Mohta, the learned counsel for the revision-petitioner, and Shri. Sonak, the learned Additional Public Prosecutor for the State.

8. Shri. Mardikar, the learned counsel for the appellants, submitted that notwithstanding dismissal of the appeal preferred by his clients, bearing No.181 of 1990, by this Court, since the State has preferred an appeal seeking enhancement of sentence, he is entitled to urge that his clients should be acquitted in view of the provisions of Section 377 of the Code of Criminal Procedure. Therefore, he submitted that he should be heard on the merits of the matter. We are afraid that such a course is not open to the learned counsel for the convicts and also to us. The remedy open to the convicts after their appeal came to be dismissed was to take the matter to a higher forum. This having not been done, it will be impermissible for us to allow the counsel to re-agitate the questions, which have been conclusively decided by this Court in Criminal Appeal No.181 of 1990. In view of this, the finding of the involvement of the convicts in the incident of assault on victim Arvind leading to their conviction for offence punishable under Section 307 read with Section 34 of the Penal Code cannot be re-agitated. In any case, with as many as 34 injuries observed by PW 10 Dr. Suradkar on the victim's person, there is nothing that the convicts could have urged to show that they should not have been convicted of offence punishable under Section 307 of the Penal Code. Dr. Suradkar was categorical that the injuries on the vital part of the body could have cost the victim with his life. The victim himself would not have named wrong persons as assailants allowing the real assailants to escape. Apart from the evidence of the victim examined as PW 1, evidence of PW 2 Sonaji and PW 3 Sheshrao, who had seen the incident, was rightly believed by the learned Trial Judge. The finding recorded by the learned Trial Judge as to the complicity of the accused, confirmed in the previous appeal, is thus beyond challenge. Therefore, the conviction of the accused for offence punishable under Section 307 read with Section 34 of the Penal Code, cannot be disturbed.

9. The learned counsel for the convicts submitted that the learned Trial Judge had not given a proper hearing in the matter of sentence. He drew our attention to the order-sheet dated 8-6-1994. He pointed out that an application for adjournment Exhibit 79 had been moved before the learned Trial Judge, which he rejected. Therefore, according to the learned counsel, there would have been no question of counsel for the convicts addressing the Court on the point of sentence.

10. First, the law contemplates that the hearing should be given to the accused in the matter of sentence, which does not necessarily include hearing the counsel. In any case, the rejection of and application for adjournment would imply that the counsel would be obliged to participate in the proceedings and address the Court, rather than go away. In any case, there is no reason to speculate in the matter, since in his judgment, the learned Trial Judge has clearly observed that he had heard the counsel for the convicts also in the matter of sentence. When a Judge so observes in the judgment, there is not only no reason to disbelieve, but also no justification to contradict, for record of the Court speaks for its correctness.

11. This takes us to the question of sentence, which has been agitated by all the parties in the three proceedings. True it is, that the victim had suffered a brutal attack with as many as 34 injuries being inflicted upon him from which only providence seems to have saved him. It does not, however, follow that the accused must be sentenced to suffer the maximum sentence prescribed under Section 307 of the Penal Code, as urged by Shri. Mohta, the learned counsel for the revision-petitioner, and supported by the learned Additional Public Prosecutor for the State. The learned Additional Sessions Judge had observed at page 231 of his judgment that at the relevant time the convicts were just 18 to 20 years in age, when the record shows that they were 22, 23 and 24 years' old respectively at the relevant time. Though the learned Additional Sessions Judge may thus be seen to have erred on the side of leniency, because of incorrect comprehension of age of the convicts at the time of commission of offence, it does not follow that the learned Trial Judge was too far off the mark. If not 18 to 20 years' old, the accused were 22 to 24 years' old youngsters without any criminal antecedents.

12. The contention of the learned counsel for the convicts that the victim himself was a convict in a murder case is irrelevant and cannot be a mitigating circumstance. Considering the principle of proportionality, we find that the learned Trial Judge had rightly exercised his discretion in the matter of sentence by inflicting sentence of rigorous imprisonment for five years on each of the convicts after considering the magnitude of attack, antecedents of the accused, etc. We are also conscious of the fact that the convicts have been living under the shadow of imprisonment, since the incident took place 19 years ago. In view of this we do not see any reason to interfere in the discretion properly exercised by the learned Trial Judge.

13. Both the criminal appeals and the criminal revision application are, therefore, dismissed. The appellants in Criminal appeal No.207 of 1994 shall surrender before the Sessions Court by 30-11-2005; failing which the Sessions Court shall take steps to have the appellants arrested and sent to prison to serve the sentence.

Order accordingly.