Sudhir Chandra Harihar Singh & Anr. vs The State Of Maharashtra

The Revision Applicants are accused Nos. 1 and 2 being husband and wife. Revision is filed under Section 401 of Code of Criminal Procedure, 1973 (‘CrPC for short), by Applicant Nos. 1 and 2 challenging the order dated 15.01.2003, passed by II^nd Additional Sessions Judge, Nashik in Criminal Appeal No. 6 of 2001, dismissing the appeal filed by Revision Applicants and confirming the order dated 18.12.2000 passed by Judicial Magistrate First Class, III^rd Court, Nashik in R.C.C. No. 62 of 1998. The Magistrate has acquitted the Revision Applicants from offence punishable under Section 292 (1) (2) read with Section 34 of Indian Penal Code, 1860 (‘IPC’ for short). However, the Revision Applicants are convicted for offences punishable under Section 342 and 354 read with Section 34 of IPC and are sentenced to suffer simple imprisonment for 3 months and to pay fine of Rs.500/- each and in default to suffer simple imprisonment for 15 days for both offences. Substantive sentences are directed to run concurrently.

Complainant is one Ms. Madhumathi Kamlakar Pangarkar. Her case in short is as under.

After completing her education, she joined service in Vadilal company at Sinnar, where she was serving from January 1997 to November 1997 as a Microbiologist. At that time, Applicant No.1 was serving in the said company as Assistant Manager and she was knowing him. She also knew Applicant No. 2, through Applicant No.1. The Complainant was on visiting terms with the Applicants. Families of both Complainant and Applicants were knowing each other and visiting each other’s house. Complainant got a better job at Accurate Analyzer and therefore, she left Vadilal company and joined the new company from 01.12.1997.

On the day of the incident i.e. 01.01.1998, when she was on duty at about 10.00 a.m., she received a phone call from Applicant No.2, who stated that her husband Applicant No.1 was threatening to kill her and hence the Complainant should come to their house immediately. The Complainant told Applicant No. 2 that she will come after the duty hours. Applicant No.2 asked the Complainant to come at least for 5 minutes. After duty hours, at 05.00 p.m. she went to the house of the Applicants and rang the door bell, when Applicant No.2 opened the door and invited Complainant inside. Applicant No.2 thereafter bolted the door from inside. At that time, Applicant No.1 came in the hall, from bedroom, wearing only T-shirt. Seeing him, the Complainant started going out, when Applicant No.1 restrained her, held her hand, dragged her in the bedroom and Applicant No.2 remained at the front door. The Complainant shouted; however, instead of stopping Applicant No.1, Applicant No.2 increased the TV volume so that shouts should not be audible. Then Applicant No.1 forcibly tried to pull the Complainant's clothes and also pushed her on the bed and started misbehaving. At that time, Applicant No.2 took out a camera from the cupboard in the bedroom and clicked two photographs of Complainant and Applicant No. 1. Then both the Applicants told the Complainant that their work is over and now she can leave the house.

That in a frightened condition, the Complainant opened the bolt of the front door and returned to her house. She informed the incident to her father and they went to the police station.

C.R. No. 1 of 1998 came to be registered on the same day at about 09.10 p.m. The statement of Complainant's father was recorded. Police went to the house of the Applicant where camera and empty carton of camera roll were seized under spot panchnama.

On 02.01.1998, search panchanama of the house was made and accused came to be arrested. Statement of one lady by name Rajeshwari Patankar came to be recorded along with statements of other witnesses.

Then on 04.01.1998, supplementary statement of the Complainant came to be recorded in which she stated that just before the receipt of phone-call from Applicant No. 2, she had received a phone call from Applicant No. 1 at about 09.00 a.m. stating that he wants to talk with her as there was some misunderstanding; however, she told that her father has asked her not to talk with him. That Applicant No. 1 had stated on phone that he was making the phone-call from Nagar. That the Complainant was convinced that Applicant No. 1 was not in the house and therefore as Applicant No.2 told her that she was being threatened by Applicant No. 1, she went to the house of the Applicant.

Chargesheet came to be filed. The Applicants pleaded not guilty. Their defence is that there was a love affair between Complainant and Applicant No. 1 and Complainant was insisting that Applicant No. 1 should give divorce to Applicant No. 2 and since Applicant No. 1 was not ready for the same, both the husband and wife are falsely implicated in this case to take revenge.

Prosecution examined Complainant as PW-1, her father as PW-2, her co-worker Deepak as PW-3 who had answered the phone call in the company and Investigating Officer as PW-4.

After hearing the case on merits, learned Magistrate has convicted the Applicants for offences punishable under Section 342 and 354 r/w 34 of IPC and has acquitted them under Section 292 (1) (2) of IPC. The Applicants filed the said appeal challenging the conviction and sentence, which has been dismissed under impugned order.

The Applicants have filed above interim applications, contending inter alia that at the time of the incident they were about 33 years old and now they are about 61 years old. It is contented that in the year 2016, the Applicant No.1 is detected with brain hemorrhage due to Acom Aneurysm for which he was required to undergo a medical procedure and has resulted Deep Venous Thrombosis in right leg. It is submitted that Applicant No.1 is not in a position to walk freely. It is submitted that in 2021, there was re-growth of the Acom Aneurysm which was again required to be treated by medical procedure. It is also submitted that Applicant No.1 has suffered from Hernia in 2025 for which surgery was conducted. Applicant No.1 is already retired in March 2023 without any complaints against him. It is submitted that in the year 2023, Applicant No.1 had to undergo MRI, brain and neck angiography. It is submitted that considering the said circumstances, discretion may be exercised under Section 360 of CrPC read with Section 4 of the Probation of Offenders Act, 1958.

Similarly, the Applicant No.2 wife of Applicant No.1 has contended that there has been lot of mental and physical pressure because of the medical issues of the Applicant No. 1/ husband. She has contended that she was detected with chronic inflammation and lump in the breast for which she was required to undergo surgery. She has also been detected with bulky uterus with multiple fibroids and recurrent urinary tract infections, for which she was required to undergo surgery. She has urged that she is a housewife required to look after an ailing husband suffering from many medical issues and there is no one else in the family to look after them. She has made similar prayers.

It is contented that this is the only case against the Applicants and there is no other criminal record or antecedents. That imprisonment at this age would expose them to hardened criminals causing more harm than good. It is submitted that they have spent 5 days in jail at the relevant time when they were arrested. An appeal is made to adopt reformative rather than punitive approach.

Both the applicants have produced copies of receipts showing that the fine imposed by the Court is paid. Documents of hospitalization and other medical conditions have been placed on record.

I have gone through the order of learned Magistrate which is confirmed by the learned Sessions Judge. I have also perused the oral evidence.

The Complainant PW-1 has admitted that her father had asked her to break relationship with the Applicant. She has admitted that both the families of Complainant and Applicant were visiting each others house when the Applicant was employed with the earlier company for about 10 months. She has also admitted that the camera roll was not put in her presence. She has admitted that when the camera was clicked, she was fully clad with her punjabi suit. She had also admitted that during the incident, her clothes were not torn and that there were no abrasions on her body. That even her scarf of the Punjabi suit was not torn. It is noted that the Complainant though was unmarried, on the date of incident, however by the time she gave evidence in the Court, her marriage was already settled.

It is not disputed by learned APP appearing for the Respondent-State that both the Applicants had suffered imprisonment for 5 days. The camera roll and/or photographs have been recovered and the Applicants are acquitted of offence punishable under Section 292 of IPC which is about sale of obscene material. Since no camera roll and photographs are recovered, obviously there is no case made out about circulation of any obscene material involving the Complainant. It is also not disputed by learned APP that both the Applicants have no criminal antecedents at all. Medical papers produced on record support the case of the Applicants that they are suffering from various ailments and have undergone surgery therefor. The medical record is not disputed by the State. It is also not disputed that Applicants, as on today, are more than 60 years old. The Applicants have been on bail during pendency of the Revision and they were also protected during pendency of the Appeal.

On going through the oral evidence as well as the judgments of the Magistrate as well as Sessions Court, I do not find any glaring illegality or perversity so as to interfere with the concurrent finding about conviction in the limited revisionary jurisdiction.

However, so far as sentence is concerned, it is seen that in paragraph 34 of the impugned order, it was submitted on behalf of the Applicant that at the relevant time, they had 7 years’ old daughter and there was no one to look after her and therefore, the Court was urged to take lenient view by only imposing sentence of fine. However, that request was not accepted.

In Anversinh alias Kiransinh Fatesinh Zala V/s. State of Gujarat (2021) 3 SCC 12, while considering the principles for sentencing, the Hon'ble Supreme Court has considered proportionality and balancing of aggravating as well as mitigating circumstances. The Hon'ble Supreme Court has observed as under.

In Jagjit Singh v/s. Central Bureau of Investigation (2024) 19 SCC 64 while considering reduction in sentence to period already undergone, the Hon'ble Supreme Court has considered health issues as one of the mitigating circumstances.

Therefore, it is clear that while sentencing or conforming the sentence imposed upon the accused, hardship is one of the relevant factors and it necessarily depends upon the facts and circumstances of every case. Age and medical conditions of the accused are undoubtedly relevant considerations.

In the present case, in my considered view, following are the mitigating circumstances viz. (i) present age of the Applicants which is above 60 years, (ii) the fact that there are no criminal antecedents against the Applicants, (iii) the fact that both are suffering from reasonably serious health issues for which surgeries have been undergone, (iv) they have already undergone imprisonment of 5 days each and the fine has already been paid, (v) since the alleged photographs clicked or camera roll used therefor are not recovered, clearly, circulation of Complainant's photographs is absent.

The twin objective of the sentencing policy is ‘deterrence’ and ‘correction’ and therefore what sentence could meet the ends of justice depends on facts and circumstances of each case.

In the light of above circumstances and legal position, though the finding arrived at by the learned Magistrate as well as learned Sessions Judge holding the Applicants guilty of offence punishable under Section 354 and 342 of IPC needs no interference, however considering the nature of offence and overall circumstances of the case, since the incident has taken place in January 1998 and the Applicants have been protected during pendency of the proceedings, as well as, considering the fact that they have undergone imprisonment of 5 days coupled with mitigating factors explained above, in my view, the period already undergone by the Applicants would be sufficient to meet the ends of justice.

Accordingly, for reasons indicated above, the Revision Application is partly allowed. Conviction of the Applicants is maintained but the sentence imposed upon both the Applicants is reduced to period of imprisonment already undergone by the Applicants. Bail bonds of the Applicants are discharged. Surety, if any, also stands discharged.

The Revision Application and both the Interim Applications are also disposed of in above terms.