Rajhans @ Nana Suklal Suryawanshi ... vs The State Of Maharashtra
2023 Latest Caselaw 8406 Bom

                                              apeal-942-2015 with revn-53-2023



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO.942 OF 2015
                WITH APPLN/4011/2022 IN APPEAL/942/2015

 1.       Rajhans @ Nana Suklal Suryawanshi
          Age: 50 years, Occu.: Nil,
          R/o. Jalgaon, Taluka and
          District Jalgaon.

 2.       Pawan s/o Rajhans Suryawanshi
          Age: 23 years, Occu.: Nil,
          R/o. Jalgaon, Taluka and
          District Jalgaon.

 3.       Amar s/o Ashok Sonawane
          Age: 22 years, Occu.: Nil,
          R/o. Jalgaon, Taluka and
          District Jalgaon.                            .. Appellants

                  Versus

          The State of Maharashtra                     .. Respondent

                                 ...
                                WITH
             CRIMINAL REVISION APPLICATION NO.53 OF 2023

          Shivaji s/o Chudaman Patil
          Age: 56 years, Occu.: Agri.,
          R/o. Shiv Colony, Gat No.53,
          Plot No.88, Jalgaon,
          District Jalgaon                             .. Appellant

                  Versus

 1.       Rajhans alias Nana Suklal Suryawanshi
          Age: 50 years, Occu.: Nil,
          R/o. Shiv Colony, Gat No.54,
          Plot No.E/1-B, Jalgaon, Dist. Jalgaon.

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::: Uploaded on - 19/08/2023                  ::: Downloaded on - 20/08/2023 09:53:12 :::
                                                    apeal-942-2015 with revn-53-2023



 2.       Pawan Rajhans Suryawanshi
          Age: 24 years, Occu.: Nil,
          R/o. Shiv Colony, Gat No.54,
          Plot No.E/1-B, Jalgaon, Dist. Jalgaon

 3.       Amar Ashok Sonawane
          Age: 23 years Occu.: Nil,
          R/o. Shiv Colony, Gat No.54,
          Plot No.E/1-B, Jalgaon, Dist. Jalgaon

 4.       The State of Maharashtra
          Through Police Inspector,
          Zilla Peth Police Station,
          Jalgaon, Dist. Jalgaon.                           .. Respondents

                                   ...
 Mr. Joydeep Chatterji h/f Mr. A. N. Nagargoje, Advocate for appellant
 in Criminal Appeal No.942 of 2015.
 Mrs. Rashmi S. Kulkarni, Advocate for the applicant in Criminal
 Revision Application No.53 of 2023.
 Mrs. V. S. Choudhary, APP for the respondent- State in both the cases.
                                   ...

                               CORAM : SMT. VIBHA KANKANWADI AND
                                       Y. G. KHOBRAGADE, JJ.

             RESERVED ON             : 17th March, 2023.
          PRONOUNCED ON              : 19th August, 2023.

 ORDER :-

 .        Criminal Appeal No.942 of 2015 has been filed under Section

374 of the Code of Criminal Procedure by the original accused

persons challenging their conviction by learned Sessions Judge,

Jalgaon in Sessions Case No.96 of 2013 on 05.12.2015 after holding

them guilty of committing offence punishable under Sections 302,

120-B, 114 of Indian Penal Code. They have been sentenced thus :-

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(a) Accused Nos.1 and 2 have been convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/- each, in default, to suffer further rigorous imprisonment for six months each.

(b) Accused No.3 is acquitted of the offence punishable under Section 302 read with Section 34 of Indian Penal Code.

(c) Accused Nos.1 and 2 have been further convicted for the offence punishable under Section 120-B of Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/- each, in default, to suffer further rigorous imprisonment for six months each.

(d) Accused No.3 has been convicted for the offence punishable under Section 302 read with Section 114 of Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default, to suffer further rigorous imprisonment for six months.

(e) Accused No.3 has been further convicted for the offence punishable under Section 302 read with Section 109 of Indian Penal Code. However, in view of infliction of sentenced for offence punishable under Section 302 read with Section 114 of Indian Penal Code, no separate sentence is imposed."

2. Criminal Revision Application No.53 of 2023 has been filed by

the original informant - victim under Section 401 read with Section

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397 of the Code of Criminal Procedure. It will not be out of place to

mention here that originally it was Criminal Appeal No.6 of 2016 filed

by him under Section 372 of the Code of Criminal Procedure.

Amendment has been made in the prayer clause as well as title by

order dated 13.02.2023. By this amendment, the prayer for setting

aside the judgment and order passed by the learned Sessions Judge

acquitting accused No.3 from the offence punishable under Section

302 read with Section 34, 118 of Indian Penal Code and Section 4

punishable under Section 25 of Arms Act was deleted and the revision

was then restricted for the enhancement in punishment of accused

Nos.1 to 3 of imprisonment for life to death penalty.

3. The matter was thoroughly heard and was reserved for

judgment, however, when it was noticed at the time of writing the

judgment that in the meantime i.e. during the period of matter

reserved for judgment, certain judgments have come up of the

Hon'ble Supreme Court and which require certain acts or things to be

got done by this Court, we would like to rely on the decision by the

Hon'ble Supreme Court in Vikas Chaudhary Vs. State of Delhi, [2023

DGLS (SC) 450] : 2023 (4) JT 517] delivered on 21.04.2023, in

which the observations are that even the informant/aggrieved party

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can also maintain the appeal under Section 372 of the Code of

Criminal Procedure. Here, in fact, on 13.02.2023, a statement was

made on behalf of the informant/revision petitioner that the revision

is not maintainable under Section 372 of the Code of Criminal

Procedure, but when the Hon'ble Supreme Court is making different

observations, then those observations are required to be considered.

In Vikas Chaudhary (Supra), reliance has been placed on the Three

Judge Bench decision of the Hon'ble Supreme Court in Manoj and

others Vs. State of Madhya Pradesh, [2023 (2) SCC 353] and,

therefore, it is imperative on this Court to call the material as per the

directions given in terms of Manoj (Supra) for evaluation. It is

submitted that in the event if death sentence is not imposed, then it is

open to the prosecution/State or even the informant to pray for fixed

term sentence and taking into consideration the gravity of the offence,

in that event also, it has been held in Vikas Chaudhary (Supra) that

the evaluation in terms of Manoj (Supra) is necessary.

4. As aforesaid, notice was not issued. It can be issued now.

Issuance of notice does not amount to admission of the matters and

since the accused persons are in jail, the evaluation in terms of the

decision in Manoj (Supra) would be helpful. Here, in this case, the

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prosecution/State has not filed any appeal under Section 377 of the

Code of Criminal Procedure, but still the following paragraphs from

Vikas Chaudhary (Supra) are required to be considered here :-

"21. Since the judgment in Sriharan (supra) reserves the power to impose special or fixed term sentences (which may be longer than the minimum specified in Section 433A CrPC

- i.e., may extend to considerably long periods, such as 30 years), with only the high courts and this court, it is imperative that this exercise is carried out even in cases where the accused might eventually not be imposed the death sentence.

To put it simply - although the trial courts are not empowered to impose such special sentences, yet at the stage when they arrive at findings of guilt in the case of a heinous offence, what would be the nature of the sentence imposed eventually, is unknown; therefore, the prosecution would have to inform the court, and present relevant materials (as elaborated in Manoj), in case the death sentence is proposed.

In that event, if ultimately death sentence is not imposed, it is open to the state (or the aggrieved party, under Section 372 CrPC) to appeal against the trial court judgment on the point of sentence; at that stage the evaluation before the High Court would be nuanced, and informed with full materials, about the convict, which otherwise it would not have the benefit of. Further, if considerable time has elapsed since the trial stage at which

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this exercise was undertaken, the appellate court should direct that a fresh attempt be made, to take into account the contemporaneous progress, if any, made by the convict.

22. In view of the above discussion, it is held that wherever the prosecution is of the opinion that the crime an accused is convicted for, is so grave that death sentence is warranted, it should carry out the exercise of placing the materials, in terms of Manoj, for evaluation. In case this results in imposition of death sentence, at the stage of confirmation, the High Court would have the benefit of independent evaluation of these materials.

On the other hand, if death sentence is not imposed, then, the High Court may still be in a position to evaluate, if the sentence is adequate, and wherever appropriate and just, impose a special or fixed term sentence, in the course of an appeal by the state or by the complainant/informant. Given the imperative need for such material to form a part of the court's consideration, it has to be emphasized that in case the trial court has failed to carry out such exercise (for whatever reason), the High Court has to call for such material while considering an appeal filed by the state or complainant for enhancement of sentence (whether resulting in imposition of capital punishment, or a term sentence).

Sentence in the present case"

5. Therefore, even if it is considered that Section 372 of the Code

of Criminal Procedure does not speak about the enhancement in

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apeal-942-2015 with revn-53-2023

sentence, however, when it is an offence under Section 302 of Indian

Penal Code, if imprisonment for life has been awarded, then prayer

for awarding death sentence would amount to enhancement in

sentence, would be a debatable question. Even if the matter is now

converted in revision, but in view of the decision in Vikas Chaudhary

(Supra), its maintainability under Section 372 of the Code of Criminal

Procedure in which the matter was originally filed appears to be

prima facie maintainable. Still, we keep the said point open.

6. In Manoj (Supra) practical guidelines to collect mitigating

circumstances have been given in paragraph Nos.213 to 217. Those

are the guidelines for the Trial Court, however, in view of above-said

paragraphs in Vikas Chaudhary (Supra), when that exercise was not

done in this case, it is incumbent on this Court to bring it on record,

so also the psychological evaluation report, probation officers report

and prison report including material on the conduct of the appellants

and work done is required to be gathered. Hence, we direct the State

to file for each of the appellant/accused, a psychological evaluation

report, a probation officers report and prison report including

material on the conduct and work done by each of the accused. We

also give liberty to the accused persons to place on record the

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mitigating circumstances in any form i.e. material in respect of the

circumstances in their favour. The entire exercise be carried out on or

before 15.09.2023.

7. Issue notice to the respondents in both the matters. Learned

APP waives notice for the respondent - State in both the matters.

Learned Advocate Mr. Joydeep Chatterji holding for learned Advocate

Mr. A. N. Nagargoje waives notice for respondent Nos.1 to 3 -

original accused in Criminal Revision Application No.53 of 2023.

8. Place the matter for further consideration on 29.09.2023.

9. In view of this order, the matter to be treated as de-reserved.

[Y. G. KHOBRAGADE, J.] [SMT. VIBHA KANKANWADI, J.]

scm

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