State Of Mah. Thru. Pso Sitabuldi vs Bhushankarrao Narsing Murti ...
2018 Latest Caselaw 8 Bom

 apeal436.08.J.odt                         1




          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
 -------------------------------------------------------------------------------------------
          Ms. T.H. Udeshi, APP for Appellant/State.
          Shri A.M. Sudame, Advocate for Respondent.
 -------------------------------------------------------------------------------------------

 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

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

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

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

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.

  7]               The appeal is dismissed.




                                              JUDGE



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