BHAGWAN NARAYAN GAIKWADversusTHE STATE OF MAHARASHTRA AND ORS.

                          [2021] 9 S.C.R. 81                               81


                BHAGWAN NARAYAN GAIKWAD                                    A
                                   v.
          THE STATE OF MAHARASHTRA AND ORS.
               (Criminal Appeal No (s). 1039 of 2021)
                       SEPTEMBER 20, 2021                                  B
          [AJAY RASTOGI AND ABHAY S. OKA, JJ.]
       Penal Code, 1860 – s.326 – Voluntarily causing grievous hurt
by dangerous weapons – Conviction under – Prosecution case that
the appellant and other accused persons attacked the victim with a
                                                                           C
lethal weapon which chopped off his right arm and leg during the
course of the crime – However, the victim survived with the immediate
medical treatment – Trial Court convicted 12 accused persons
including appellant – accused for the offence punishable u/s.326
r/w. s.149 IPC and each of them was sentenced to suffer 7 years
rigorous imprisonment – Appeal before the High Court was                   D
collectively preferred by all the 12 accused persons, the High Court
under its impugned judgment found the accused A3, A4, A10 and
A12 including the present appellant (A1) guilty and because of lack
of material against the other accused persons, they were acquitted
under the impugned judgment – The appeal stood abated in respect
                                                                           E
of four accused persons, A3, A4, A10 and A12 – The appellant was
sentenced to rigorous imprisonment for 5 years – Before the Supreme
Court, the appellant confined his submissions for compounding the
sentence for the reason that a compromise was entered between the
appellant and the injured victim – Held: The substance of the
compromise was completely superfluous in the mechanical form and           F
nothing elicit about the earlier relations, if any, or when such cordial
relations or what kind of family relations later on had developed,
all such facts were completely missing and the contents were
stereotyped – The compromise does not record satisfaction of this
Court – The High Court had recorded sufficient reasons while
                                                                           G
convicting appellant u/s.326 IPC – The brutality of assault is
apparent from the face of the record – The injured was crippled for
life – The act of the appellant is unpardonable – Thus, there is no
reason to interfere in the sentence awarded by the High Court.

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                                  81
82            SUPREME COURT REPORTS                      [2021] 9 S.C.R.


A          Dismissing the appeal, the Court
            HELD: 1. The substance of what has been referred to in
     the compromise and noticed by this Court, the statement of fact
     is completely superfluous in the mechanical form and nothing
     elicit about the earlier relations, if any, or when such cordial
B    relations or what kind of family relations later on have been
     developed, all such facts are completely missing and the contents
     are stereotyped, appears to be copied from paragraph 6 of the
     judgment in Mohd. Ibrahim Vs. State of Karnataka and Others
     (Criminal Appeal No. 825 of 2018) decided by this Court on 5th
     July, 2018. [Para 23][89-H; 90-A-B]
C
           2. In the recent judgment in Murali, this Court has taken
     into consideration not only the compromise but the other
     aggravating and mitigating circumstances in which the crime has
     been committed including the fact that the accused has undergone
     more than half the sentence and in totality of the facts and
D    circumstances, this Court has interfered and molded the sentence.
     [Para 24][90-B-C]
            3. While disposing of the appeal preferred at the instance
     of the present appellant, the High Court has recorded its sufficient
     reasons while convicting him under Section 326 IPC and not only
E    the fact that it was a pre-meditated attempt of the appellant, he
     assaulted the victim with the sword and chopped of his right leg
     below the knee and right forearm below the elbow and the brutality
     is apparent on the face of record. [Para 26][90-E-F]
            4. Giving punishment to the wrongdoer is the heart of the
F    criminal delivery system, but this Court does not find any
     legislative or judicially laid down guidelines to assess the trial
     Court in meeting out the just punishment to the accused facing
     trial before it after he is held guilty of the charges. Nonetheless,
     if one goes through the decisions of this Court, it would appear
G    that this Court takes into account a combination of different factors
     while exercising discretion in sentencing, that is proportionality,
     deterrence, rehabilitation, etc. [Para 28][90-H; 91-A-B]



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     BHAGWAN NARAYAN GAIKWAD v. THE STATE OF                            83
             MAHARASHTRA AND ORS.

      5. The compromise if entered at the later stage of the            A
incident or even after conviction can indeed be one of the factor
in interfering the sentence awarded to commensurate with the
nature of offence being committed to avoid bitterness in the
families of the accused and the victim and it will always be better
to restore their relation, if possible, but the compromise cannot
                                                                        B
be taken to be a solitary basis until the other aggravating and
mitigating factors also support and are favourable to the accused
for molding the sentence which always has to be examined in the
facts and circumstances of the case on hand. [Para 29][91-B-D]
      6. This Court has not been able to record its satisfaction in
reference to the kind of compromise which has now been obtained         C
and placed on record after 28 years of the incident and this Court
cannot be oblivious of the sufferings which the victim has suffered
for such a long time and being crippled for life and the leg and
arm of the victim are amputated in the alleged incident and since
then he has been fighting for life and is pursuing his daily chores     D
with a prosthetic arm and leg and has lost his vital organs of his
body and became permanently disabled and such act of the
appellant is unpardonable. [Para 30][91-D-E]
      Ram Pujan and Others v. State of Uttar Pradesh (1973)
      2 SCC 456; Murali v. State represented by Inspector of            E
      Police (2021) 1 SCC 726; Mohd. Ibrahim v. State of
      Karnataka and Others (Criminal Appeal No. 825 of
      2018) – referred to.
                       Case Law Reference
(1973) 2 SCC 456               referred to        Para 11               F
(2021) 1 SCC 726               referred to        Para 11
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1039 of 2021.
      From the Judgment and Order dated 10.06.2020 of the High Court    G
of Judicature at Bombay in Criminal Appeal No.136 of 1996.
      Mahesh Jethmalani, Sr. Adv., Pravin Satale, Ms. Gunjan Mangala,
Rajiv Shankar Dvivedi, Sushant Kumar Sarkar, Rishab Jain, Ms. Arti
Dvivedi, Advs. for the Appellant.
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84             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A          Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Vijay
     S. Khamkar, Shashibhushan P. Adgaonkar, Advs. for the Respondents.
           The Judgment of the Court was delivered by
           RASTOGI, J.
B          1. Leave granted.
            2. The instant appeal is directed against the judgment and order
     dated 10th June, 2021 passed by the High Court of Bombay in Criminal
     Appeal No. 136 of 1996 upholding conviction for the offence punishable
     under Section 326 IPC and sentenced to undergo rigorous imprisonment
C    for 5 years with a fine of Rs. 10,000/- and under Section 357 of Code of
     Criminal Procedure (CrPC) of Rupees Two Lakhs as a monetary
     compensation to the victim.
            3. The prosecution case is that on 13th December 1993, at around
     5.30 p.m., Subhash Yadavrao Patil (injured victim) was returning to
D    Malegaon from Tembhurni on bicycle. While he was near to the main
     road, the accused persons arrived there in the tractor and they started
     pelting stone at him. The stone hit his back and one of the accused gave
     a blow of Satur on his leg below the left knee. While he started running,
     he fell down and the present accused appellant gave blow by lethal
     weapon (sword) on his right leg below the knee and due to the brutal
E    blow, it was almost mutilated and while trying to avoid the blow of sickle,
     the injured tried to avoid by raising his right hand and the blow hit his
     right arm below the elbow due to which it was detached and there was
     profuse bleeding from the injuries and he was immediately taken to the
     hospital for medical assistance.
F           4. Dr. Vijay Shivram Upase (PW 8) who examined the victim
     deposed that when the patient was brought to the hospital, his lower
     right leg below knee was completely detached and severed and right
     arm below the elbow was hanging by the skin. He had bandaged the
     injuries only to stop bleeding and cover the wounds. That all the vessels
     of the veins were open and arteries of injury no. 1 and 4 were cut.
G
     There was profuse bleeding and without immediate medical intervention,
     the cumulative effect of all the injuries suffered by the victim would
     have resulted into death. Injury nos. 1 and 4 were dangerous to life.
             5. The injuries were not only brutal but the injured was left in such
     a critical condition that upon seeing him, PW 22 had immediately arranged
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     BHAGWAN NARAYAN GAIKWAD v. THE STATE OF                                    85
      MAHARASHTRA AND ORS. [AJAY RASTOGI, J.]

for recording his dying declaration by Dr. Pawale(PW 12) Special                A
Executive Magistrate. PW 22 further stated that it would be only the
strong will of the victim and with the immediate medical care that he
could survive. The medical certificate-Ex.59 issued by the Primary Health
Centre, Tembhurni, shows the injuries as follows:-
       “i. Sharp amputated curt over right lower leg 1/3 rd. It was             B
       completely cut.
       ii. Incised wound over ½ above injury no.1 front part, size 4½” x
       ½”.
       iii. Incised wound ½ % above injury No.1 outer side, 1"x ¼”.
                                                                                C
       iv. Sharp amputated cut over 1" below right fore arm, middle part,
       arm completely cut.
       v. Incised abrasion left side back of ear ¼” x ¼”.
       6. Initially, 12 accused persons faced the trial and were convicted
by the learned trial Judge for offence punishable under Section 326 read        D
with Section 149 IPC for causing grievous hurt to Subhash Yadavrao
Patil (PW-7) and each of them was sentenced to suffer 7 years R.I. and
fine in sum of Rs. 1000/- each, in default, to suffer R.I. for the period of
six months by judgment dated 26th February, 1996. On appeal being
preferred collectively by all the 12 accused persons, the High Court
                                                                                E
under its impugned judgment dated 10th June, 2021 found the accused
A3, A4, A10 and A12 including the present appellant (A1) guilty and
because of lack of material against the other accused persons, they
were acquitted under the impugned judgment. The appeal stood abated
in respect of four accused persons, A3, A4, A10 and A12.
                                                                                F
       7. The submission made before the High Court by learned counsel
for the appellant was that the incident is of the year 1993 and the appellant
was on bail during trial and also pending appeal before the High Court
and to revert back to suffer substantive sentence after 28 years would
be unjustified but his contention was repelled after assigning reasons in
the impugned judgment:-                                                         G
       “30. It was the specific submission by the respective counsel
       appearing for the appellants that the incidence is of the year 1993
       and that the appellants are on bail since 1996 and that, to revert
       them back to suffer substantive sentence would be unjustified
       after 23 years. However, the court cannot be oblivious of the fact       H
86             SUPREME COURT REPORTS                             [2021] 9 S.C.R.


A          that the complainant has survived in the hope of justice with a
           prosthetic arm and leg for all these years and his hand and leg had
           to be amputated.
           35. The victim has been crippled for life. It is true that he is pursuing
           his daily chores with a prosthetic arm and leg but he has lost his
B          vital organs of his body. The doctors who had examined PW7
           have clearly stated that in the absence of immediate treatment,
           the death was certain. There is no reason to doubt the testimony
           of the victim which is duly corroborated by the PW8.”
           8. This was the primary reason for which while upholding
C    conviction under Section 326 IPC, the appellant is sentenced to rigorous
     imprisonment for 5 years and to pay under Section 357 CrPC of Rs. 2
     lakhs as a monetary compensation to the victim.
             9. The application for exemption from surrendering was rejected
     by the learned Chamber Judge by an Order dated 14th July, 2021. Only
D    thereafter, the appellant has surrendered on 5th August 2021. It is informed
     to this Court that he has undergone the actual sentence by this time of 5
     months.
             10. The record indicates that no notice was issued by this Court
     and when the matter was listed for admission, Mr. Mahesh Jethmalani,
E    learned senior counsel for the appellant has not argued on merits and
     confined his submission for compounding the sentence for the reason
     that a compromise has been entered between the appellant and the injured
     victim and in support thereof, a compromise affidavit of the victim dated
     13th July, 2021 has been placed on record to justify that the victim has no
     desire to make the appellant undergo the remaining sentence and keeping
F    in view the peace and harmony between the families, it has been
     requested by the complainant victim to compound the offence and submits
     that the appellant be released on the sentence undergone.
            11. Learned senior counsel on the strength of the compromise
     affidavit placed on record submits that when the parties have settled
G    their disputes amicably and the relations of the families are very cordial
     and they are now closely related having matrimonial relations with each
     other’s family and the incident has occurred due to misunderstanding
     and on the spur of the moment and submitted that the parties have jointly
     prayed, in the interest of peace and harmony between both the families
     and as requested by the complainant to compound the offence and in the
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        BHAGWAN NARAYAN GAIKWAD v. THE STATE OF                                87
         MAHARASHTRA AND ORS. [AJAY RASTOGI, J.]

interest of justice, he may be released on the sentence undergone and          A
has placed reliance on the judgment of this Court in Ram Pujan and
Others Vs. State of Uttar Pradesh1 and Murali Vs. State represented
by Inspector of Police2.
       12. Learned counsel for the complainant has joined hands with
the appellant and submits that a joint affidavit has been filed by the         B
injured complainant (PW-7) and he has been instructed to inform this
Court that in terms of Para 3 of the affidavit of the injured victim, the
parties have restored their cordial relations and also prays that the
appellant be released on the period of sentence undergone.
       13. Per contra, Mr. Sachin Patil, learned counsel for the State         C
opposed the request made by the appellant and submits that the ultimate
object of the criminal justice system is to protect the society and to deter
the criminal in achieving the avowed object of law by imposing appropriate
sentence. It is always expected that the courts would operate the
sentencing system so as to impose such sentence which reflects the
conscience of the society and the sentencing process has to be stern           D
where it should be and proceeding on such premise, of alleged compromise
obtained after the impugned judgment of the High Court dated 10th June,
2021 upholding conviction under Section 326 IPC and sentenced to
undergo 5 years of rigorous sentence, such compromise after 28 years
of the incident, according to him, is obtained by coercion or inducement       E
not only to harm the criminal justice system but it undermines the public
confidence of the efficacy of law and society.
       14. Learned counsel further submits that the learned trial Judge
and also the High Court, while imposing sentence, has taken note of the
nature of the incident, their related factors in which the crime has been      F
committed and has delicately balanced the relevant circumstances in a
dispassionate manner which ordinarily is not to be interfered because of
the alleged compromise being obtained and cordial relations overnight
are developed after 28 years of the incident.
       15. Learned counsel further submits that the incident is of             G
13th December 1993, the learned trial Judge convicted the accused by
its judgment dated 26th February, 1996 and appeal was preferred before
the High Court at the instance of the appellant in the year 1996 which
came to be decided in June, 2021, and the appellant was on bail throughout,
1
    1973(2) SCC 456
2
    2021(1) SCC 726                                                            H
88            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A    cordial relations between the families never came forward but only after
     conviction has been upheld and the appellant now has to undergo sentence,
     such compromise affidavit has been placed on record to justify in avoiding
     sentence which ordinarily attaches no credence and submits that the
     compromise affidavits which are being filed, its bonafide and genuineness
     is to be recorded in the facts of each case and submits that looking to the
B
     injury of permanent disability which the complainant has suffered, the
     present appellant despite a shield of compromise on record deserves no
     indulgence.
           16. We have given our thoughtful consideration to the arguments
     advanced on behalf of the parties and with their assistance perused the
C    material available on record.
            17. It is not in dispute that the offence punishable under Section
     326 IPC is non-compoundable as per Section 320 CrPC. The case of
     the prosecution is that the appellant attacked the injured victim (PW-7)
     with a lethal weapon(sword) which had caused permanent nature of
D    disability and the brutality is apparent on the face of record. His right
     arm and leg were chopped off during the course of crime which occurred
     on 13th December, 1993. It was only because of the strong will and
     immediate medical treatment extended to the victim that he could survive.
     It was even stated by the treating Doctor that in the absence of immediate
E    medical treatment, his death was certain.
            18. After going through the record of the case and the concurrent
     finding of fact which has been recorded by the learned trial Judge and
     confirmed by the High Court in the impugned judgment, although no
     submissions have been made by the learned counsel for the appellant on
F    merits of the matter but still for our own satisfaction, we have gone
     through the record and in our considered view, the appellant has been
     rightly held guilty and convicted for offence under Section 326 IPC.
            19. Learned counsel for the appellant has restricted his submission
     only for sentencing taking defence of the compromise dated 13th July,
G    2021 entered into between the parties but the fact is that after he has
     been convicted under Section 326 IPC and sentenced to 5 years rigorous
     imprisonment under the impugned judgment of the High Court dated
     10th June 2021, all such family relations came on the ground and he has
     hardly undergone 5 months of sentence as on the date as informed to
     this Court.
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     BHAGWAN NARAYAN GAIKWAD v. THE STATE OF                                    89
      MAHARASHTRA AND ORS. [AJAY RASTOGI, J.]

     20. This Court considers it appropriate to extract para 3 of the           A
compromise affidavit filed by the victim dated 13th July, 2021 as follows:-
      “3. That the deponent further submits that the incident in question
      took place on 13/12/1993 i.e., almost before 28 years due to
      misunderstanding and in the spur of moment. The petitioner and
      the deponent to the same clan and they all have in same Village           B
      and with passage of time, the relations between the petitioner and
      the deponent have become very cordial. The petitioner and the
      deponent are now very closely related and are having matrimonial
      relations with each other family. The petitioner’s and deponent’s
      families participate in the functions of each other’s. With the huge
      time gap, the grudges amongst each other have vanished away               C
      and have taken a shape of friendship. The petitioner is 65 year old
      person suffering from heart disease and requires medical help
      and attention regularly. They have old age parents wife and children
      to look after, their entire family would suffer irreparable loss if the
      petitioner go behind the bars at this stage. The petitioner has           D
      suffered imprisonment at the time of trial as well as after conviction
      till the time bail was granted to him by the trial court and high
      court. The deponent does not have a slightest desire to make the
      petitioner undergo the remaining sentence. Therefore, in the
      interest of both the parties and so also in the interest of the peace
      and harmony between both the families, the complainant has filed          E
      this affidavit permission to compound the offence.”
       21. The three-Judge Bench of this Court in Ram Pujan and Others
(supra) and Murli (supra) has recorded its satisfaction that the
compromise has not been obtained out of coercion and inducement and
entered with free will without any reservation/caveat certainly be acted        F
upon and can be one of the mitigating factor to be considered by altering
the sentence in question.
      22. We are in full agreement on legal principles and on facts which
has been noticed by this Court in the judgment referred to supra. But we
are not being able to record our satisfaction on the contents of the            G
compromise which has been obtained overnight after conviction under
Section 326 IPC being confirmed by the High Court under the impugned
judgment for the incident of December 1993.
      23. The substance of what has been referred to in paragraph 3 of
the compromise and noticed by us, the statement of fact is completely           H
90            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A    superfluous in the mechanical form and nothing elicit about the earlier
     relations, if any, or when such cordial relations or what kind of family
     relations later on have been developed, all such facts are completely
     missing and the contents are stereotyped, appears to be copied from
     paragraph 6 of the judgment in Mohd. Ibrahim Vs. State of Karnataka
     and Others (Criminal Appeal No. 825 of 2018) decided by this Court on
B
     5th July, 2018.
            24. In the recent judgment in Murali (supra), this Court has taken
     into consideration not only the compromise but the other aggravating
     and mitigating circumstances in which the crime has been committed
     including the fact that the accused has undergone more than half the
C    sentence and in totality of the facts and circumstances, this Court has
     interfered and molded the sentence.
           25. In the facts and circumstances of the given case, for deciding
     just and appropriate sentence to be awarded for an offence, the
     aggravating and mitigating factors and circumstances of which the crime
D    has been committed are to be taken into consideration and to be delicately
     balanced on the basis of the relevant circumstances in a dispassionate
     manner by the Court.
           26. While disposing of the appeal preferred at the instance of the
     present appellant, the High Court has recorded its sufficient reasons
E    while convicting him under Section 326 IPC and not only the fact that it
     was a pre-meditated attempt of the appellant, he assaulted the victim
     with the sword and chopped of his right leg below the knee and right
     forearm below the elbow and the brutality is apparent on the face of
     record.
F           27. This Court cannot be oblivious of this fact that the injured
     victim has been crippled for life and pursuing his daily chores with the
     prosthetic arm and leg and has lost vital organs of the body and became
     permanently disabled. This has been stated by PW 8 that in the absence
     of immediate medical attention, death was certain and that was the reason
G    his dying declaration was also recorded during that point of time, in our
     considered view, such a brutality cannot be ignored which is not against
     the individual but the crime is against the society which has to be dealt
     with sternly.
            28. Giving punishment to the wrongdoer is the heart of the criminal
     delivery system, but we do not find any legislative or judicially laid down
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      BHAGWAN NARAYAN GAIKWAD v. THE STATE OF                                      91
       MAHARASHTRA AND ORS. [AJAY RASTOGI, J.]

guidelines to assess the trial Court in meeting out the just punishment to         A
the accused facing trial before it after he is held guilty of the charges.
Nonetheless, if one goes through the decisions of this Court, it would
appear that this Court takes into account a combination of different factors
while exercising discretion in sentencing, that is proportionality,
deterrence, rehabilitation, etc.
                                                                                   B
       29. The compromise if entered at the later stage of the incident or
even after conviction can indeed be one of the factor in interfering the
sentence awarded to commensurate with the nature of offence being
committed to avoid bitterness in the families of the accused and the
victim and it will always be better to restore their relation, if possible, but
the compromise cannot be taken to be a solitary basis until the other              C
aggravating and mitigating factors also support and are favourable to
the accused for molding the sentence which always has to be examined
in the facts and circumstances of the case on hand.
       30. As already observed, we have not be able to record our
satisfaction in reference to the kind of compromise which has now been             D
obtained and placed on record after 28 years of the incident and this
Court cannot be oblivious of the sufferings which the victim has suffered
for such a long time and being crippled for life and the leg and arm of the
victim are amputated in the alleged incident dated 13th December, 1993
and since then he has been fighting for life and is pursuing his daily             E
chores with a prosthetic arm and leg and has lost his vital organs of his
body and became permanently disabled and such act of the appellant is
unpardonable.
        31. In totality of the facts and circumstances of the case, we are
not inclined to give any benefit of the alleged compromise dated                   F
13th July, 2021 for interfering in the sentence awarded by the High Court
in the impugned judgment which at least does not call for interference of
this Court.
       32. As a result, the appeal is dismissed accordingly.
       33. Pending application(s), if any, stand disposed of.                      G


Ankit Gyan                                                     Appeal dismissed.



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