Bombay High Court
Rajhans @ Nana Suklal Suryawanshi And ... vs The State Of Maharashtra on 19 August, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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.
[1]
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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 :- [2] ::: Uploaded on - 19/08/2023 ::: Downloaded on - 20/08/2023 09:53:22 :::
apeal-942-2015 with revn-53-2023
(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 [3] ::: Uploaded on - 19/08/2023 ::: Downloaded on - 20/08/2023 09:53:22 ::: apeal-942-2015 with revn-53-2023 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 [4] ::: Uploaded on - 19/08/2023 ::: Downloaded on - 20/08/2023 09:53:22 ::: apeal-942-2015 with revn-53-2023 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 [5] ::: Uploaded on - 19/08/2023 ::: Downloaded on - 20/08/2023 09:53:22 ::: apeal-942-2015 with revn-53-2023 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 [6] ::: Uploaded on - 19/08/2023 ::: Downloaded on - 20/08/2023 09:53:22 ::: apeal-942-2015 with revn-53-2023 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 [7] ::: Uploaded on - 19/08/2023 ::: Downloaded on - 20/08/2023 09:53:22 ::: 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 [8] ::: Uploaded on - 19/08/2023 ::: Downloaded on - 20/08/2023 09:53:22 ::: apeal-942-2015 with revn-53-2023 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 [9] ::: Uploaded on - 19/08/2023 ::: Downloaded on - 20/08/2023 09:53:22 :::