Tanhabai W/O. Sonaji Kshirsagar ... vs The State Of Maharashtra And ...
2022 Latest Caselaw 385 Bom

                                      (1)
                                                     908 criappln-2860.2019.odt


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

              908 CRIMINAL APPLICATION NO.2860 OF 2019
                         IN APEAL/390/2001

         TANHABAI W/O SONAJI KSHIRSAGAR AND ANOTHER

                                  VERSUS

               THE STATE OF MAHARASHTRA AND OTHERS
                                ...
                Mr. D.R. Jaybhar, Advocate for the applicants.
            Mr. M.M. Nerlikar, A.P.P. for respondent No. 1 - State.
                                       ...


                               CORAM :      V.K. JADHAV AND
                                            SANDIPKUMAR C. MORE, JJ.

                               DATE   :     11-01-2022.


 ORDER :

1. By judgment and order dated 05.12.2017 in Criminal

Appeal No. 390 of 2001, this Court (Coram : T.V. Nalawade and A.M.

Dhavale, JJ.) has partly allowed the Criminal Appeal No. 390 of

2001 and set aside the conviction of accused No. 1 under Section

302 of the Indian Penal Code and he has held guilty for the offence

under Section 304-I of the I.P.C. and is sentenced to suffer rigorous

imprisonment for seven years and to pay fine of Rs. 2,00,000/- in

default, to suffer further rigorous imprisonment for two years. It is

further directed that as far as possible, the fine amount be recovered

and it shall be paid to heirs of deceased Sanjay Kshirsagar. Accused

No.1 is acquitted of the remaining charges. It is further directed that

908 criappln-2860.2019.odt

he shall surrender before the trial Judge within 15 days for

undergoing the sentence failing which the learned Sessions Judge

shall take steps to secure his presence and issue conviction warrant.

2. This application is filed by the heirs of deceased Sanjay

Kshirsagar for direction to deposit the fine amount and the same

shall be paid to the applicants for their survival.

3. In terms of the provisions of Section 421 of Cr.P.C. when

the offender has been sentenced to pay a fine, the Court passing the

sentence may take action for the recovery of the fine in the manner

as prescribed in Clauses (a) and (b) of Section 421. Further, as per

the proviso, if the sentence directs that in default of payment of the

fine, the offender shall be imprisoned, and if such offender has

undergone the whole of such imprisonment in default, no Court shall

issue such warrant unless, for special reasons to be recorded in

writing, it considers it necessary so to do, or unless it has made an

order for the payment of expenses or compensation out of the fine

under section 357.

4. In the instant case, it is not clear as to whether the

respondent No. 2 herein has undergone the whole of such

imprisonment in default or whether he is undergoing the

imprisonment in default at present. However, the applicants before

us are the aged parents / legal heirs of deceased Sanjay Kshirsagar

and this Court while converting the offence from Section 302 to

908 criappln-2860.2019.odt

Section 304 - I of I.P.C., directed to pay the compensation in terms

of the provisions of Section 421 of Cr.P.C. to the legal heirs of

deceased Sanjay Kshirsagar out of the fine amount of Rs. 2,00,000/-

deposited in the Court.

5. Thus, before passing the order under Section 421 of

Cr.P.C. finally, we deem it appropriate to issue notice to respondent

No.2 to grant him an opportunity of being heard.

6. In view of the above, issue notice to respondent Nos.1

and 2 returnable on 08.02.2022. Learned A.P.P. waives notice for

respondent No. 1 - State.

 (SANDIPKUMAR C. MORE, J.)                              (V.K. JADHAV, J.)

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