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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.436 OF 2008
State of Maharashtra,
Through Police Station Officer,
P.S. Sitabuldi, Nagpur. ....... APPELLANT
...V E R S U S...
Bhushankarrao Narsingh Murti Raydu,
Aged 56 years, Occ: Service,
House No.ID-10032, Sector-OL,
Type-4, Quarter No.13,
Seminary Hills, Nagpur. ....... RESPONDENT
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Ms. T.H. Udeshi, APP for Appellant/State.
Shri A.M. Sudame, Advocate for Respondent.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 31.10.2017 DATE OF PRONOUNCING THE JUDGMENT : 04.01.2018 1] The State is in appeal seeking enhancement of sentence. The respondent-accused was convicted for offence punishable under section 354 of the Indian Penal Code by the judgment and order dated 28.02.2006 passed by the Judicial Magistrate First Class, Court 2, Nagpur in Summary Criminal Case ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:45 ::: apeal436.08.J.odt 2 1168/2002 and was sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.2000/-. The accused challenged the said judgment and order in Criminal Appeal 54/2006 which was decided by the judgment and order impugned dated 19.04.2008 passed by the Ad-hoc District Judge-4 and Additional Sessions Judge-4, Nagpur. The learned Appellate Judge allowed the criminal appeal partly, the conviction was maintained, the sentence of rigorous imprisonment for one year was set aside and the fine enhanced from Rs.2000/- to Rs.5000/-. The State contends that the judgment and order impugned to the extent the sentence of rigorous imprisonment for one year is set aside, occasions serious miscarriage of justice. 2] Heard Ms. T.H. Udeshi, the learned Additional Public Prosecutor for the appellant/State and Shri A.M. Sudame, the learned counsel for the respondent-accused.
3] In order to keep the record straight, I may mention that the accused challenged the conviction recorded by the learned Magistrate and affirmed by the learned Appellate Judge in ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:45 ::: apeal436.08.J.odt 3 Criminal Revision Application 143/2008, which I have rejected by judgment and order dated 04.01.2018.
4] Ms. Udeshi, the learned Additional Public Prosecutor for appellant strenuously urged that enhancement of fine from Rs.2000/- to Rs.5000/- is a grossly inadequate sentence and submits that the sentence awarded by the learned Magistrate be restored. In fairness to the learned A.P.P., I must record that I was nearly persuaded to restore the sentence awarded by the learned Magistrate. However, the accused has filed on record an affidavit dated 26.10.2017, the relevant portions of which read thus:-
2. That the Respondent is aged about 66 years and is suffering from Coronary Artery Disease and has undergone angioplasty on 09/05/2012. As per report of Cardiologist, his heart is functioning upto 35% only. A copy of medical certificate dated 09/05/12 is filed herewith as ANNEXURE A. The Respondent is undergoing treatment continuously for the heart ailment. The Respondent further suffered from Retinal damage and was operated upon on 05/10/2016. Now every 3 months he is required to take injections "lucentis". A copy of medical discharge summary dated 05/10/16 is filed herewith as ANNEXURE B.
3. That, immediately after registration of FIR dated 26/06/02 on 02/09/02 the Respondent was placed ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:45 ::: apeal436.08.J.odt 4 under suspension. A copy of order of suspension dated 01/10/02 is filed herewith as ANNEXURE C. Subsequently the suspension was revoked on 12/10/2004. A copy of order of revocation of suspension is filed herewith as ANNEXURE D. In the meanwhile by memorandum dated 18/08/2003 a charge-sheet for major penalty was issued to the Respondent and inquiry was completed. However, as a consequence of Judgment dated 19/04/2008, a punishment of removal from service was imposed upon the Respondent w.e.f. 30/06/2011, wherein it was also mentioned that suspension period of 2 years and 12 days was wholly justified. An appeal against the said order was rejected on 09/12/2011. As a consequence of above orders the Respondent was removed from service w.e.f. 30/06/2011, his service of 2 years and 12 days was forfeited and he lost 2 increments because his suspension period was not regularized. Further although he had served in the department for 40 years and had been recipient of Presidents Medal for distinguished service he was sanctioned only compassionate allowance which is 66% of full pension. A copy of order of punishment dated 30/06/2011 is filed herewith as ANNEXURE E. A copy of order rejecting the appeal dated 09/12/2011 is filed herewith as ANNEXURE F. Thus the Applicant's pension which was earlier fixed at Rs. 11410/- was reduced to Rs.7531/-. There after the Respondent commuted 1/3 pension and commuted value of pension which was earlier Rs. 4,31,514/- was reduced to 2,96,164/- the Respondent lost Rs. 1,35,350/-. After commutation pension was fixed at Rs. 4519/- The Respondent lost Rs. 3879/- per month in basic pension. Copies of PAO 26/05/11 and 06/02/12 are filed herewith as ANNEXURE G & H respectively.
4. That, the Respondent states that he has not challenged the orders passed by the Disciplinary Authority as well as by the Appellate Authority and ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:08:45 ::: apeal436.08.J.odt 5 has accepted the punishment imposed upon him. The Respondent undertakes not the challenge the same in present or even in the future.
5] Having given anxious consideration to the contents of the affidavit, to which there is no rebuttal, I am not inclined to restore the sentence of imprisonment. The accused, who is 66 years old is suffering from Coronary Artery disease and other medical ailments. Perusal of paragraph 3 of the affidavit would reveal that the accused is terminated from service in view of the proved misconduct of having outraged the modesty of the complainant. The accused has suffered substantial monetary loss, which of course is entirely of his own making. However, the accused states that he has not challenged the order passed by the Disciplinary Authority and the Appellate Authority and has accepted the punishment. In the circumstances, the accused has been sufficiently punished.
6] In the facts of the case, I am not inclined to restore the sentence of rigorous imprisonment.
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7] The appeal is dismissed.
JUDGE
NSN
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