Bombay High Court
The State Of Maharashtra vs Balu Gena Sarvade And Ors on 14 September, 2015
Bench: A.M. Thipsay
6-APPEAL-1143-2011.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1143 OF 2011
THE STATE OF MAHARASHTRA )...APPELLANT
V/s.
1) BALU GENA SARVADE )
2) YUVRAJ BALU SARVADE )
3) BABURAO JANAPPA SARVADE )
4) GULAB DNYANDEO SARVADEig )
5) PRABHAKAR BHUJANG KALE )
6) ANAND BHARAT SARVADE )
7) PANDURANG VITHOBA JAWANJAL )
8) MARTAND BHIMRAO KALE )
9) ASHOK GENA SARVADE )
10) APPA JANNAPPA SARVADE )...RESPONDENTS
Shri Deepak Thakre, APP for the Appellant - State.
Shri Ujwal R. Agandsurve, Advocate for the Respondents.
CORAM : ABHAY M. THIPSAY, J.
DATE : 14th SEPTEMBER 2015.
ORAL JUDGMENT :
1 These ten respondents along with four others were
prosecuted on allegations of having committed the offences
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punishable under Section 307 of the IPC, Section 326 of the IPC,
Section 504 of the IPC read with Section 149 of the IPC read with
Section 34 of the IPC, as also the offences punishable under
Section 143 of the IPC, Section 147 of the IPC and Section 148 of
the IPC. The learned Assistant Sessions Judge, Solapur, after
holding a trial, found the original accused nos.2, 6, 10 and 12 not
guilty and acquitted them. The respondents were convicted of an
offence punishable under Section 324 of the IPC read with Section
34 of the IPC. They were acquitted of the other offences. The
learned Assistant Sessions Judge, however, instead of sentencing
the respondents, granted them the benefit of the provisions of the
Probation of Offenders Act (P.O.Act) and directed them to be
released on their entering into a bond in the sum of Rs.15,000/-
for a period of 2 years, as contemplated under Section 4 of the
P.O.Act. Being aggrieved by the order passed by the Assistant
Sessions Judge in granting the benefit of the provisions of the
P.O.Act to the convicted respondents, the State of Maharashtra has
filed this appeal purportedly under Section 377 of the Code of
Criminal Procedure (Code).
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2 I have heard Shri Deepak Thakre, the learned APP for
the State. I have heard Shri Ujwal Agandsurve, the learned
counsel for the respondents.
3 Whether the present appeal under Section 377 of the
Code is maintainable, is extremely doubtful, - to say the least.
When the respondents have been granted the benefit of the
provisions of the P.O.Act, actually, no sentence has, yet, been
imposed upon them. Therefore, there should be no question of
inadequacy of the sentence or the enhancement thereof. Infact,
the proper course for the State ought to have been to file an
appeal as contemplated under Section 11(2) of the P.O.Act.
4 Even then, since the appeal is pending before this
court for quite sometime, after hearing the learned APP and the
learned counsel for the respondents, instead of dismissing the
appeal as not maintainable, I think it fit to dispose it of as follows.
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5 It is a fact that the prosecution witnesses nos.1,2, 3, 4
and 5 had sustained injuries. While granting benefit of the
provisions of the P.O.Act to the convicted respondents, the learned
Assistant Sessions Judge ought to have awarded suitable
compensation to the injured victims. He could have done so, by
virtue of provisions of Section 5 of the P.O.Act. Though after going
through the facts of the case, as reflected in the impugned
judgment, I do not find the order granting the benefit of the
provisions of the P.O.Act to the respondents, illegal or needing
interference, I am of the opinion that the aspect of compensation
should not have been lost sight of, while taking a decision to
extend the benefit of the provisions of Section 4 of the P.O.Act to
the convicts. I think the ends of justice would be met if the
respondents are directed to pay compensation to the injured
victims in accordance with the provisions of Section 5 of the
P.O.Act. The learned counsel for the respondents has agreed
before me that the respondents would pay compensation to the
victims in the amount, as may be specified by this court. He,
however, submits that, the respondents come from an
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economically lower strata of the society, and that, this is reflected
from the judgment itself.
6 Considering all the relevant aspects of the matter, it is
directed that each of the respondents shall pay compensation of
Rs.1,000/- each, to each of the injured victims i.e. prosecution
witnesses nos.1, 2, 3, 4 and 5. That means, each respondent shall
pay an amount of Rs.5,000/- totally as compensation, which will
be divided equally between the injured victims. The learned
counsel for the respondents agrees that the respondents shall pay
such compensation within a period of six weeks from today, by
depositing the same in the trial court.
7 In view of the fact that now the injured victims are
being suitably compensated in accordance with the provisions of
Section 5 of the P.O.Act; and subject to the modification of the
impugned order to the extent indicated above, the appeal is
dismissed.
(ABHAY M. THIPSAY, J.)
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CERTIFICATE
Certified to be true and correct copy of the original
signed Judgment /Order.
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