The State Of Maharashtra vs Sandip @ Aabya Kalu Patil And Anr
2023 Latest Caselaw 8418 Bom

                                            appeals-441-2016, 469-2016, 497-2016



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO.441 OF 2016

 1.       Sandip @ Aabya Kalu Patil
 2.       Vijay @ Bhurya Kalu Patil                      .. Appellants

                  Versus

          The State of Maharashtra                       .. Respondent
                                     ...
                                    WITH
                        CRIMINAL APPEAL NO.497 OF 2016

          The State of Maharashtra
          Through Chalisgaon Police Station,
          Tq. Chalisgaon, Dist. Jalgaon.                 .. Appellant

                  Versus

 1.       Sandip @ Aabya Kalu Patil
 2.       Vijay @ Bhurya Kalu Patil                      .. Respondents
                                     ...
                                    WITH
                        CRIMINAL APPEAL NO.469 OF 2016

          Anil s/o Adhar Patil                           .. Appellants

                  Versus

 1.       The State of Maharashtra
          Through Police Officer,
          Police Station, Chalisgaon,
          Tq. Chalisgaon, Dist. Jalgaon.

 2.       Sandip @ Aabya Kalu Patil
 3.       Vijay @ Bhurya Kalu Patil                      .. Respondents




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::: Uploaded on - 19/08/2023                    ::: Downloaded on - 20/08/2023 09:52:59 :::
                                                  appeals-441-2016, 469-2016, 497-2016



                                 ...
 Mr. R. S. Deshmukh, Senior Counsel i/b Mr. Devang R. Deshmukh,
 Advocate for appellant in Criminal Appeal No.441 of 2016, for
 respondents in Criminal Appeal No.497 of 2016 and for respondent
 Nos.2 and 3 in Criminal Appeal No.469 of 2016.

 Mr. Mayur V. Salunke, Advocate for appellant in Criminal Appeal
 No.469 of 2016.

 Mr. A. V. Deshmukh, APP for the appellant - State in Criminal Appeal
 No.497 of 2016 and for respondent No.1 in Criminal Appeal No.469
 of 2016.
                                 ...

                               CORAM : SMT. VIBHA KANKANWADI AND
                                       ABHAY S. WAGHWASE, JJ.

DATE : 19th August, 2023.

ORDER :-

. Criminal Appeal No.441 of 2016 is filed by original accused

Nos.1 and 2 challenging their conviction for the offences under

Section 302, 341 read with Section 34 of Indian Penal Code in

Sessions Case No.255 of 2013 by learned Additional Sessions Judge,

Jalgaon on 20.06.2016. Both of them have been convicted for the

offence punishable under Section 302 read with Section 34 of Indian

Penal Code and sentenced to suffer rigorous imprisonment for life and

to pay fine of Rs.5,000/- each, in default to suffer rigorous

imprisonment for six months. Further, they have been convicted for

the offence punishable under Section 341 read with Section 34 of

Indian Penal Code and directed to pay fine of Rs.500/- each only, in

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appeals-441-2016, 469-2016, 497-2016

default, to suffer simple imprisonment for one month. Here, in this

case, the present appellants were the only accused persons, who faced

the said trial.

2. Criminal Appeal No.497 of 2016 is preferred under Section 377

of the Code of Criminal Procedure by the State for enhancement in

the punishment for the offence punishable under Section 302, 341

read with Section 34 of Indian Penal Code.

3. Criminal Appeal No.469 of 2016 is filed by the original

informant under Section 372 of the Code of Criminal Procedure and it

is also for the enhancement of punishment. It is specifically stated

that the sentence be modified from imprisonment for life to capital

punishment and in respect of Section 341 of Indian Penal Code, it

should be modified from only payment of fine to imprisonment for

one month.

4. When the matters are on board on 11.07.2023, learned Senior

Counsel Mr. R. S. Deshmukh instructed by learned Advocate

Mr. Devang R. Deshmukh appearing for the appellants in Criminal

Appeal No.441 of 2016 was ready with the matter, however, the

learned APP was not ready. This Court, taking into consideration the

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fact that in the appeal preferred by the prosecution there is no specific

prayer, directed learned APP to make thorough submissions, so also it

was directed to the learned Advocate for the original informant that

he should make submissions on the point of maintainability of the

appeal under Section 372 of the Code of Criminal Procedure, when he

is seeking death. It will not be out of place to mention here that

Criminal Appeal No.497 of 2016 filed by the prosecution and

Criminal Appeal No.469 of 2016 filed by the informant have not been

admitted, though both these appeals have been filed in the year 2016.

Learned APP and learned Advocate for the original informant are now

relying on the decision by the Hon'ble Supreme Court in Vikas

Chaudhary Vs. State of Delhi, [2023 DGLS (SC) 450] : 2023 (4) JT

517] and submit that even the prosecution can maintain the appeal

for enhancement. It has been observed in the said case that the

informant/aggrieved party can maintain an appeal under Section 372

of the Code of Criminal Procedure. They both have further submitted

that 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

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appeals-441-2016, 469-2016, 497-2016

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.

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

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

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

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

would like to reproduce following paragraphs from Vikas Chaudhary

(Supra) :-

"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

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appeals-441-2016, 469-2016, 497-2016

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 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

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appeals-441-2016, 469-2016, 497-2016

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"

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

of Criminal Procedure does not speak about the enhancement in

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. We, therefore, hold in view

of the above-said paragraphs that the criminal appeal under Section

372 of the Code of Criminal Procedure appears to be prima facie

maintainable. Still, we keep the said point open.

7. 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,

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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

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.

8. Issue notice to the respondents in Criminal Appeal No.469 of

2016 and Criminal Appeal No.497 of 2016. Learned Senior Counsel

Mr. R. S. Deshmukh instructed by learned Advocate Mr. Devang R.

Deshmukh waives notice for the respondents - original accused.

9. Place the matter for further consideration on after 29.09.2023.

[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]

scm

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