SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Ajay Bhagwan Raut vs The State Of Maharashtra on 26 August, 2019

231-APPEAL-180-2018-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.180 OF 2018

AJAY BHAGWAN RAUT )…APPELLANT

V/s.

1) THE STATE OF MAHARASHTRA )
)
2) ARTI AJAY RAUT )…RESPONDENTS

Mrs.Nasreen S.K.Ayubi, Advocate for the Appellant.

Mr.Vinod Chate, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 26th AUGUST 2019

JUDGMENT :

1 By this appeal, the appellant/convicted accused is

challenging the judgment and order dated 31st May 2017 passed

by the learned Additional Sessions Judge, Vasai, District Palghar,

in Sessions Case No.66 of 2015 thereby convicting him of offences

punishable under Sections 326A and 498A of the Indian Penal

avk 1/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

Code. On the first count, he is sentenced to suffer rigorous

imprisonment for 10 years apart from direction to pay fine of

Rs.25,000/- and in default to undergo rigorous imprisonment for

1 year. On another count, he is sentenced to suffer rigorous

imprisonment for 2 years apart from direction to pay fine of

Rs.5,000/- and in default to undergo further rigorous

imprisonment for 3 months. Substantive sentences are directed to

run concurrently by the learned trial court.

2 Facts leading to the prosecution of the

appellant/convicted accused and his resultant sentence can be

summarised thus :

(a) First Informant Arti Ajay Raut, who happens to be the victim

of the crime in question, is the wife of the

appellant/convicted accused. She married the

appellant/convicted accused 17 years prior to the incident

and out of the wedlock, she is having two sons namely PW3

Ankit and Smit. As the appellant/convicted accused was not

doing any job for earning livelihood, there used to be

avk 2/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

frequent quarrels in the house. The appellant/convicted

accused used to assault and abuse First Informant/PW1 Arti

Raut. He used to suspect her character. Hence, from six

months prior to the incident, she started residing separately

at her parents house along with her two sons.

(b) The incident of causing burn injuries to PW1 Arti Raut took

place in wee hours of 20th November 2015 near the

bathroom, adjacent to the parental house of PW1 Arti Raut.

When she came out of the bathroom, somebody with veiled

face embraced her from behind. That person tried to pour

acid in her mouth and in that attempt, the liquid from the

container fell on her cheek, face, wrist, abdomen as well as

elbow. PW1 Arti Raut suffered burn injuries. She was then

taken to Sir D.M.Petit Municipal Hospital at Vasai. Her

statement came to be recorded at that hospital on 20 th

November 2014 and accordingly, Crime No.I-187 of 2014

came to be registered at Police Station Vasai.

avk 3/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

(c) During course of investigation, spot came to be inspected in

presence of PW2 Austin Futado, panch witness by

Investigating Officer PW5 Waman Mhatre, Police Sub-

Inspector. Spot panchnama Exhibit 20 came to be prepared

and from the spot of the incident, one full shirt and yellow

coloured container came to be seized. The

appellant/convicted accused came to be arrested. Seized

articles were sent for chemical analysis. On completion of

routine investigation, the appellant/convicted accused came

to be charge-sheeted. The learned trial court framed and

explained the Charge for offences punishable under Sections

326A and 498A of the Indian Penal Code to the

appellant/convicted accused. He pleaded not guilty and

claimed trial.

(d) In order to bring home the guilt to the appellant/convicted

accused, the prosecution has examined in all five witnesses.

Injured First Informant Arti Raut is examined as PW1. The

report lodged by her is at Exhibit 17. Panch witness Austin

avk 4/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

Futado is examined as PW2 and Spot Panchnama is at

Exhibit 20. Ankit Raut – son of PW1 Arti Raut as well as the

appellant/convicted accused is examined as PW3. Dr.Rani

Badlani, Medical Officer working in Sir D.M.Petit Municipal

Hospital, Vasai, is examined as PW4. Report of her medical

examination is at Exhibit 28. Investigating Officer Waman

Mhatre is examined as PW5.

(e) The defence of the appellant/convicted accused was that of

total denial. He contended that after marriage, he refused to

change his religion and therefore, false report came to be

lodged against him.

(f) After hearing the parties, the learned trial court came to be

conclusion that the appellant/convicted accused had

subjected his wife PW1 Arti Raut to cruelty, as explained by

Explanation to Section 498A of the Indian Penal Code and

on 20th November 2014, he voluntarily caused grievous hurt

to her by throwing acid on her person and thereby

avk 5/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

committed offence punishable under Section 326A of the

Indian Penal Code. The said judgment and resultant order of

conviction is impugned in the instant appeal

3 I have heard Mrs.Ayubi, the learned advocate

appearing for the appellant/convicted accused. She argued that

evidence of prosecution witnesses namely PW1 Arti Raut and PW3

Ankit Raut indicates that the person who flung acid on PW1 Arti

Raut had concealed his identity by wearing a scarf on his face

whereas the spot panchnama shows that shirt was found on the

spot. PW3 Ankit Raut has accepted the fact that the assailant was

not wearing a scarf. It is argued that no acid injuries were found

on the person of the appellant/convicted accused and such

evidence is not forthcoming. The prosecution witnesses are

deposing that the assailant carried acid in the bottle whereas what

was seized from the spot was a container having lid. Clothes of

either the victim or the appellant/convicted accused were not

seized by the prosecution, and therefore, story of the prosecution

is doubtful. The learned advocate further argued that the learned

avk 6/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

trial court committed error in imposing fine of Rs.25,000/- on the

appellant/convicted accused and default sentence of rigorous

imprisonment for 1 year for the offence punishable under Section

326A of the Indian Penal Code, by ignoring evidence of

prosecution witnesses.

4 The learned APP supported the impugned judgment

and order of conviction and resultant sentence.

5 I have considered the submissions so advanced and

also perused the record and proceedings including oral as well as

documentary evidence adduced by the prosecution.

6 So far as the offence punishable under Section 326A of

the Indian Penal Code is concerned, I see no reason to differ with

the conclusion arrived by the learned trial court in holding the

appellant/convicted accused guilty of the said offence. It is seen

from evidence of the First Informant/ PW1 Arti Raut that after

leading sufficiently long married life with the appellant/convicted

accused, she started residing separately from him by taking her

avk 7/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

both sons with her, because of matrimonial disputes. It is in her

evidence that on 20th November 2014, she woke up at 5.00 a.m.

and had been to the bathroom for answering nature’s call. When

she came out of the bathroom, one person came from behind. He

had wrapped a piece of cloth around his face. That person tried to

pour some liquid in her mouth from the bottle held by him.

However, because of jerk, the liquid from that container dropped

on her person causing burns to her chin, breast, abdomen and

elbow. PW1 Arti Raut deposed that hearing her shouts, her elder

son PW3 Ankit came out and they both caught hold of the said

person, who was ultimately found to be the appellant/convicted

accused. Neighbours also came on the spot and that is how the

appellant/convicted accused came to be apprehended. Evidence

of PW1 Arti Raut shows that then she was admitted to the hospital

from where she lodged report Exhibit 17. Despite searching cross-

examination of this witness, nothing came on record to disbelieve

her version regarding the incident of sustaining burns by the acid,

so also apprehension of the appellant/convicted accused on the

spot itself. Cross-examination of PW1 Arti Raut shows that the

avk 8/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

appellant/convicted accused had lost his job after birth of their

elder son Ankit and thereafter, he started plying auto rickshaw

and he used to spend his earnings on liquor. Cross-examination of

this witness further reveals that the appellant/convicted accused

made various efforts to bring back PW1 Arti Raut from her

parental house but she was unwilling to cohabit with him, due to

his addiction of liquor.

7 PW3 Ankit, who happens to be the elder son of the

couple, is corroborating the version of his mother PW1 Arti Raut.

Evidence of PW3 Ankit is showing that on 20 th November 2014, at

about 5.00 a.m., he heard alarms of PW1 Arti Raut and then

rushed out of the house. PW3 Ankit deposed that he then caught

hold of a person running away and removed a scarf like cloth

found wrapped on face of that person. PW3 Ankit testified that

the said person was found to be his father i.e. the

appellant/convicted accused. Cross-examination of PW3 Ankit

shows that there used to be quarrels between his father and

mother and then his father used to beat his mother PW1 Arti Raut.

avk 9/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

In cross-examination, PW3 Ankit admitted that the cloth which

was found wrapped on face of the appellant/convicted accused

was not a scarf.

8 Cumulative effect of evidence of PW1 Arti Raut and

PW3 Ankit unerringly points out that in the morning hours of 20 th

November 2014, it was the appellant/convicted accused who

poured acid on person of PW1 Arti Raut and caused burn injuries

to her. The appellant/convicted accused was residing separately

from PW1 Arti Raut and in the morning hours of 20th November

2014, immediately after the incident, he was apprehended by

PW1 Arti Raut and her son PW3 Ankit on the spot itself. As such,

it cannot be said that the prosecution has not proved the fact that

the appellant/convicted accused was not the person who had

poured some corrosive substance on person of PW1 Arti Raut

causing burn injuries to her. The FIR Exhibit 17 lodged with

promptitude fully corroborates version of PW1 Arti Raut.

avk 10/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

9 Evidence of PW4 Dr.Rani Badlani, Medical Officer

working with Sir D.M.Petit Municipal Hospital, Vasai, shows that

soon after the incident i.e. at about 6.15 a.m. of 20th November

2014, she had examined PW1 Arti Raut and found following

injuries on her person :

“i) Acid burn injury over mandibular and right side
of face

ii) Burn injury at left forearm anterior aspect and
right elbow region anterior aspect

iii)Burn under both breast over the chest and over
the abdomen

iv)Burn injury at right lateral side of the chest”

Evidence of this Medical Officer shows that PW1 Arti Raut had

sustained 15 to 20 % burn injuries because of acid. Evidence of

PW4 Dr.Rani Badlani is corroborated by contemporaneous

Medical Certificate Exhibit 28.

10 Evidence of PW2 Austin Futado and PW5 Waman

Mhatre, Investigating Officer, shows that on the very same day of

the incident, the spot came to be inspected and a full shirt as well

avk 11/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

as yellow coloured container came to be seized from the spot by

preparing Spot Panchnama Exhibit 20. PW5 Waman Mhatre had

sent the bottle seized from the spot of the incident so also the shirt

for chemical analysis vide forwarding letter Exhibit 33. Chemical

Analyser’s Report at Exhibit 26 shows that traces of Nitrate

radicals from nitric acid were detected in the container seized

from the spot of the incident. PW4 Dr.Rani Badlani has

categorically deposed that burn injuries caused to PW1 Arti Raut

can be sustained by sulphuric acid or nitric acid. Finding of

residues of nitric acid in chemical analysis of the container seized

from the spot of the incident corroborates version of PW1 Arti

Raut. This evidence is sufficient to hold that it was the

appellant/convicted accused who caused burn injuries to PW1 Arti

Raut by pouring acid on her. Therefore, no error can be found in

conviction of the appellant/convicted accused for the offence

punishable under Section 326A of the Indian Penal Code. He is

rightly sentenced to suffer rigorous imprisonment for 10 years on

that count.

avk 12/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

11 However, so far as imposition of fine of Rs.25,000/-

and default sentence of 1 year of rigorous imprisonment for the

offence punishable under Section 326A of the Indian Penal Code

is not in consonance with the settled law of imposition of fine and

default sentence. In the matter of Shantilal vs. State of M.P.1 it is

held thus, in paragraphs 31 and 32, by the Honourable Apex

Court while dealing with imposition of fine and default sentence :

“31……The term of imprisonment in default of
payment of fine is not a sentence. It is a penalty
which a person incurs on account of non-payment of
fine. The sentence is something which an offender
must undergo unless it is set aside or remitted in
part or in whole either in appeal or in revision or in
other appropriate judicial proceedings or otherwise.

A term of imprisonment ordered in default of
payment of fine stands on a different footing. A
person is required to undergo imprisonment either
because he is unable to pay the amount of fine or
refuses to pay such amount. He, therefore, can
always avoid to undergo imprisonment in default of
payment of fine by paying such amount. It is,
therefore, not only the power, but the duty of the

1 (2007) 11 SCC 243

avk 13/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

court to keep in view the nature of offence,
circumstances under which it was committed, the
position of the offender and other relevant
considerations before ordering the offender to suffer
imprisonment in default of payment of fine.”

32 A general principle of law reflected in
Sections 63 to 70, IPC is that an amount of fine
should not be harsh or excessive. The makers of IPC
were conscious of this problem. The Authors of the
Code, therefore, observed;

“Death, imprisonment, transportation,
banishment, solitude, compelled labour, are not,
indeed, equally disagreeable to all men. But they
are so disagreeable to all men that the
legislature, in assigning these punishments to
offences, may safely neglect the differences
produced by temper and situation. With fine, the
case is different. In imposing a fine, it is always
necessary to have as much regard to the
pecuniary circumstances of the offender as to
the character and magnitude of the offence.’
(Ratanlal Dhirajlal’s Law of Crimes, 26 th Edn.,
2007, p. 221)

The authors further stated : (Ratanlal Dhirajlal

avk 14/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

at pp.226-227)

‘…….when a fine has been imposed, what
measures shall be adopted in default of
payment? And here two modes of proceeding,
with both of which we were familiar, naturally
occurred to us. The offender may be imprisoned
till the fine is aid, or he may be imprisoned for a
certain term, such imprisonment being
considered as standing in place of the fine. In
the former case, the imprisonment is used in
order to compel him to part with his money; in
the latter case, the imprisonment is a
punishment substituted for another punishment.

Both modes of proceeding appear to us to be
open to strong objections. To keep an offender
in imprisonment till his fine is paid is, if the fine
be beyond his means, to keep him in
imprisonment all his life; and it is impossible for
the best Judge to be certain that he may not
sometimes impose a fine which shall be beyond
the means of an offender. Nothing could make
such a system tolerable except the constant
interference of some authority empowered to
remit sentences; and such constant interference
we should consider as in itself an evil. On the

avk 15/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

other hand, to sentence an offender to fine and
to a certain fixed term of imprisonment in
default of payment, and then to leave it to
himself to determine whether he will part with
his money or lie in goal, appears to us to be a
very objectionable course….

……We propose that, at the time of imposing a
fine, the Court shall also fix a certain term of
imprisonment which the offender shall undergo
in default of payment. In fixing this term, the
Court will in no case be suffered to exceed a
certain maximum, which will very according to
the nature of the offence. If the offence be one
which is punishable with imprisonment as well
as fine, the term of imprisonment in default of
payment will not exceed one-fourth of the
longest term of imprisonment fixed by the Code
for the offence. If the offence be one which by
the Code is punishable only with fine, the term
of imprisonment for default of payment will in
no case exceed seven days.”

12 In the matter of Palaniappa Gounder vs. State of

T.N.2, the Honourable Apex Court has considered the issue of
2 (1977) 2 SCC 634

avk 16/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

sentence in default of payment of fine and has held that

legitimacy is not to be confused with propriety and the fact that

the court possesses a certain power does not mean that it must

always exercise it. It is further held that though there is power to

combine a sentence of death with a sentence of fine, that power is

to be sparingly exercised because the sentence of death is an

extreme penalty to impose and adding to that grave penalty a

sentence of fine is hardly calculated to serve any social purpose.

The Honourable Apex Court also observed that, infact, the

common trend of sentencing is that even a sentence of life

imprisonment is seldom combined with a heavy sentence of fine.

These observations were relied by the Honourable Apex Court

while deciding the case of Shahejadkhan Mahebubkhan Pathan

vs. State of Gujarat3 in which the substantive sentence of

imprisonment was brought down from 15 years to 10 years and

that of default sentence from 3 years to 6 months. Relevant

observations of the Honourable Apex Court in the matter of

Shahejadkhan (supra) can be found in paragraphs 12, 13 and

15, which read thus :

3 (2013) 1 Supreme Court Cases 570

avk 17/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

“12 It is clear and reiterated that the term of
imprisonment in default of payment of fine is not a
sentence. To put it clear, it is a penalty which a
person incurs on account of non-payment of fine. On
the other hand, if sentence is imposed, undoubtedly,
an offender must undergo unless it is modified or
varied in part or whole in the judicial proceedings.
However, the imprisonment ordered in default of
payment of fine stands on a different footing. When
such default sentence is imposed, a person is
required to undergo imprisonment either because he
is unable to pay the amount of fine or refuses to pay
such amount. Accordingly, he can always avoid to
undergo imprisonment in default of payment of fine
by paying such an amount. In such circumstance, we
are of the view that it is the duty of the Court to
keep in view the nature of offence, circumstances in
which it was committed, the position of the offender
and other relevant considerations such as pecuniary
circumstances of the accused person as to character
and magnitude of the offence before ordering the
offender to suffer imprisonment in default of
payment of fine. The provisions of Sections 63 to 70
of IPC make it clear that an amount of fine should
not be harsh or excessive. We also reiterate that

avk 18/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

where a substantial term of imprisonment is
inflicted, an excessive fine should not be imposed
except in exceptional cases.”

“13 While taking note of the above principles,
we are conscious of the fact that the present case is
under the NDPS Act and for certain offences, the
Statute has provided minimum sentence as well as
minimum fine amount. In the earlier part of our
judgment, taking note of the fact that the appellants
being the first time offenders, we imposed the
minimum sentence, i.e., 10 years instead of 15 years
as ordered by the trial Court. In other words, the
appellants have been ordered to undergo
substantive sentence of RI for 10 years which is
minimum.”

“15 It is clear that clause (b) of sub-section (1)
of Section 30 of the Code authorizes the Court to
award imprisonment in default of fine up to 1/4th
of the term of imprisonment which the Court is
competent to inflict as punishment for the offence.
However, considering the circumstances placed
before us on behalf of the appellants-accused, viz.,
they are very poor and have to maintain their

avk 19/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

family, it was their first offence and if they fail to
pay the amount of fine as per the order of the
Additional Sessions Judge, they have to remain in
jail for a period of 3 years in addition to the period
of substantive sentence because of their inability to
pay the fine, we are of the view that serious
prejudice will be caused not only to them but also to
their family members who are innocent. We are,
therefore, of the view that ends of justice would be
met if we order that in default of payment of fine of
Rs.1.5 lakh, the appellants shall undergo RI for 6
months instead of 3 years as ordered by the
Additional Sessions Judge and confirmed by the
High Court.”

13 In the case in hand, it is reflected form evidence of

PW1 Arti Raut that the appellant/convicted accused had lost job

after birth of their son and thereafter he used to ply auto rickshaw

for earning livelihood. In such a situation, imposition of fine of

Rs.25,000/- on him is not at all justified, so also the default

sentence of rigorous imprisonment of 1 year. Ends of justice

would meet if the appellant/convicted accused is directed to pay

fine of Rs.5,000/- for the offence punishable under Section 326A

avk 20/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

of the Indian Penal Code and in default to undergo further

rigorous imprisonment for 3 months.

14 So far as the offence punishable under Section 498A of

the Indian Penal Code is concerned, there is no sufficient evidence

to convict the appellant/convicted accused on that count. Cruelty

as explained by Explanation to Section 498A of the Indian Penal

Code implies harsh and harmful conduct with certain intensity

and persistence. It implies willful conduct of such a nature as is

likely to drive a married woman to commit suicide or to cause

grave injury or danger to her life, limb or health. In the case in

hand, evidence on this aspect coming from the mouth of PW1 Arti

Raut is as vague as it can be. Her omnibus statement that the

appellant/convicted accused used to doubt her chastity and used

to treat her with cruelty by beating her is not sufficient to convict

the appellant/convicted accused for the offence punishable under

Section 498A of the Indian Penal Code. Evidence of PW1 Arti

Raut on this count is not corroborated by evidence of her son PW3

Ankit. He has only deposed that his mother started residing

avk 21/23

::: Uploaded on – 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

separately from the appellant/convicted accused on account of

disputes. Therefore, the appellant/convicted accused is entitled for

benefit of doubt, so far as the offence punishable under Section

498A of the Indian Penal Code is concerned because of lack of

sufficient evidence. In the result, the following order :

ORDER

i) The appeal is partly allowed.

ii) Conviction of the appellant/convicted accused for the

offence punishable under Section 326A of the Indian Penal

Code so also substantive sentence of rigorous imprisonment

for 10 years imposed on him by the learned trial court is

maintained.

However, sentence of fine of Rs.25,000/- and default

sentence of rigorous imprisonment for 1 year is modified by

directing the appellant/convicted accused to pay fine of

Rs.5,000/- and to undergo rigorous imprisonment for 3

months for the offence punishable under Section 326A of

the Indian Penal Code, in default of payment of fine.

 avk                                                                    22/23

::: Uploaded on - 27/08/2019 27/08/2019 23:18:48 :::
231-APPEAL-180-2018-J.doc

iii) The appellant/convicted accused is acquitted of the offence

punishable under Section 498A of the Indian Penal Code.

iv) The appeal is accordingly disposed off.

(A. M. BADAR, J.)

avk 23/23

::: Uploaded on - 27/08/2019 27/08/2019 23:18:48 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation