Bombay High Court
Sunil Tanaklal Chauriwar vs The State Of Mah.Thr.Pso ... on 4 September, 2017
Bench: R. B. Deo
apeal484.04.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.484 OF 2004
Sunil s/o Tanaklal Chouriwar,
Aged about 40 years, Occ: Labour,
R/o Bhanpur, Tahsil Gondia,
District Gondia. ....... APPELLANT
...V E R S U S...
The State of Maharashtra,
through Police Station Officer,
Police Station, Gangazari,
District Gondia. ....... RESPONDENT
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None for Appellant.
Shri A.V. Palshikar, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
4 SEPTEMBER, 2017.
ORAL JUDGMENT
1] The appellant seeks to assail judgment and order
dated 02.07.2004 in Sessions Trial 14/1998 delivered by the 1 st
Ad hoc Additional Sessions Judge, Gondia, by and under which,
the appellant is acquitted of offence punishable under section 302
of the Indian Penal Code and is convicted for offence punishable
under section 323 of the Indian Penal Code and sentenced to
suffer simple imprisonment for six months and to pay a fine of
Rs.500/-. The accused is further directed to pay compensation of
Rs.25,000/- to the legal representative of the deceased, under
section 357 of the Code of Criminal Procedure.
2] None appears for the accused. Shri A.V. Palshikar, the
learned Additional Public Prosecutor appears for the State.
However, consistent with the dictum of the Hon'ble Supreme
Court in Bani Singh and others vs. State of Maharashtra, (1996) 4
SCC 720, I have carefully scrutinized the record of proceedings
and I propose to decide the appeal on merit with the assistance of
the learned A.P.P. for the State.
3] The gist of the prosecution case is that the deceased
was working as Peon in Bhanpur Primary Health Centre. He was
alone in the Primary Health Centre on 07.12.1997 as the other
staffs were in the field implementing the polio vaccination
programme. The deceased was resting in the office on the bench.
At about 10:00 a.m., the accused brought his father to the Primary
Health Centre for treatment. The medical staff was not available
and the accused therefore, sent his father home. However, the
accused lingered on in the Primary Health Centre. The accused
was annoyed and enraged. He uttered certain words and suddenly
gave 2 to 3 blows to the deceased while he was sleeping on the
bench. The accused then fled away.
4] The next morning, deceased narrated the incident to
the medical staff. He complained of pain but then did not receive
any medical treatment. The deceased went home and narrated the
incident to his wife and son. His wife applied some balm which
did not provide any relief to the deceased. On 08.12.1997 the son
of the deceased took him to the Bhanpur Primary Health Centre,
the Medical Officer gave preliminary aid and brought him to the
K.T.S. Hospital, Gondia at 05:30 p.m. The statement of Mahadeo
(Exh.29) was recorded at 07:15 p.m. by Head Constable Baliram
Thakare (P.W.8). On 09.12.1997 at 12:45 p.m. the Executive
Magistrate recorded dying declaration of the deceased in presence
of Dr. Paunikar (P.W.9). The deceased expired at 07:15 p.m. on
09.12.1997. The accused was arrested, further investigation
ensued, offence under sections 353, 333 and 302 of the I.P.C. was
registered, and charge-sheet came to be filed before the Judicial
Magistrate First Class, Gondia who committed the case to the
Sessions Court. The learned Sessions Judge framed charge
(Exh.8), the accused pleaded not guilty and came to be tried, the
defence of the accused is of total denial as is discernible from the
statement recorded under section 313 of the I.P.C.
5] The learned Sessions Judge, on a close evaluation of
the evidence has recorded a finding that there was neither intent
to cause death nor can knowledge be attributed to the accused
that by delivering the kick blows death is eminent or most likely.
The learned Judge acquitted the accused of offence punishable
under section 302 of the Indian Penal Code and section 353 and
333 of the Indian Penal Code and convicted the accused of offence
punishable under section 323 of the I.P.C.
6] I have closely scrutinized the evidence on record.
The finding recorded that the accused did not intent to cause
death nor can the necessary knowledge be attributed that death is
likely to result cannot be attributed to the accused, is
unexceptionable. The evidence however, clearly makes out an
offence punishable under section 323 of the I.P.C. The accused
was annoyed and enraged since his father did not receive the
treatment as there was no medical staff in the Primary Health
Centre. What he did was to take the law in own hand and vent
anger and frustration by assaulting the deceased by kicks when
the deceased was sleeping on a bench in the office of the Primary
Health Centre. However, considering the fact that the accused has
already spent about three months in judicial custody, I am
inclined to maintain the conviction and to alter the sentence to
imprisonment already undergone.
7] The appellant is justified in contending that the
direction in paragraph 3 of the operative order that the accused
should pay Rs.25,000/- to the legal representative of the deceased
Mahadeo is ultra vires the statutory provision. Section 357 of the
Cr.P.C. reads thus:
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 property 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;
(c) when any person is convicted of any offence for
having caused the death of another person or of having
abetted the commission of such an offence, in paying
compensation to the persons who are, under the Fatal
Accidents Act, 1855 (13 of 1855), entitled to recover
damages from the person sentenced for the loss
resulting to them from such death;
(d) when any person is convicted of any offence
which includes theft, criminal misappropriation,
criminal breach of trust, or cheating, or of having
dishonestly received or retained, or of having
voluntarily assisted in disposing of, stolen property
knowing or having reason to believe the same to be
stolen, in compensating any bona fide purchaser of
such property for the loss of the same if such property is
restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is
subject to appeal, no such payment shall be made
before the period allowed for presenting the appeal has
elapsed, or, if an appeal be presented, before the
decision of the appeal.
(3) When a Court imposes a sentence, of which
fine does 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 Sessions when exercising its powers 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] Since the trial Court imposed fine of Rs.500/- as a
part of sentence, it is only amount of fine, that can be given to the
victim as compensation. Sub-section (3) of Section 357 cannot be
invoked. The direction that the accused should pay Rs.25,000/-
to the legal representative of the deceased is absolutely untenable
and contrary to the statutory provisions. The said direction is set
aside. The appeal is partly allowed in the above terms.
JUDGE
NSN
