1 CA 970.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.970 OF 2010 The State of Maharashtra .. Appellant. Vs. Devdatta Shashikant Chaudhary .. Respondent. Mrs.M.R.Tidake APP for the State. CORAM : N.D.DESPHANDE, J. DATED : JANUARY 20, 2011. PC: 1. Heard learned A.P.P. for the State. 2. The appeal preferred by the appellant is limited to enhancement of the sentence. The appeal was preferred after delay of 51 days for which separate application for condonation of delay is filed and the same came to be allowed by this court vide order dated 10.12.2010. 3. Learned A.P.P. for the State conceded that there is no ground taken or there is no challenge to the order of conviction passed by the Addl. Sessions Judge holding the accused guilty under section 323. Initially, the accused were prosecuted under section 325 and tried by the Judicial Magistrate, First Class, Rune. Admittedly, all three accused were acquitted. In the appeal preferred by the State, the appeal against original accused nos.2 and 3 came to be dismissed and was partly S 2 CA 970.10 allowed against accused no.1 – the respondent herein. He was held guilty under section 323 of IPC, that is, voluntarily causing hurt. The said judgment and order of conviction of accused no.1, under section 323 is impugned in this appeal only on the point of sentence. Therefore, to appreciate grievance of the appellant in this appeal, the impugned order is reproduced which reads thus: “1. The appeal is partly allowed. 2. The judgment/finding of the learned trial Court as to accused no.1 acquitting accused of all the offences, is set aside and instead of offence under Section 325 of Indian Penal Code, the accused No.1 Deodorant Chaudhari is convicted of the offence punishable under section 323 of Indian Penal Code. Instead of sending the accused No.1 Deodatta Chaudhari to jail, the accused No.1 be released on executing a PR Bond of Rs.5,000/- with one surety in the like amount and for a span of two years from today, the accused No.1 Deodatta Chaudhari to be of good behaviour and not to commit any offence. In case of breach of the conditions of the bond, the accused No.1 Deodatta Chaudhari shall be liable to surrender himself and to undergo the sentence inflicted at that time. 3. The accused No.1 also to pay a compensation of Rs.5,000/- to the informant on or before 11-07-2009. 4. The appeal is dismissed against the accused Nos.2 and 3.” 3 CA 970.10 4. As mentioned above there is no challenge to conviction under section 323 and the prosecution did not insist or took any ground to show that accused could have been possibly held guilty under section 325 of IPC. The scrutiny of this appeal is limited to whether the sentence passed by the first appellate court will be legal and proper. 5. Upon consideration of the record and after going through the judgment of the trial Court and also the observations and findings of fact recorded by the first appellate court which discovered the guilt of only accused no.1 but not beyond charge of section 323 IPC, in my opinion, the sentence to execute the bond on condition would be fully within competence and discretion of the first appellate court. In the light of the facts and circumstances of the case, such as the parties are residing in the same housing society, the complainant who was the office bearer at the relevant time and there was some quarrel and hence show cause notice came to be issued to the accused. Every aspect of the evidence including medical evidence has been considered not only by the trial Court but also it was recalled and reiterated by the first appellate court which is considered as final court of facts for appreciation of evidence in the criminal trials. Normally, in appeal no second thought is given to the proceedings which are in nature of appeal against 4 CA 970.10 the order of the appellate court which is limited to enhancement of the sentence. No further scrutiny would be warranted. No illegality prima facie is found in the impugned order of conviction which is also not challenged by the accused as there is no appeal by them before this court. In that view of the matter no leave is granted. 6. Leave to appeal, accordingly, rejected. (N.D.Deshpande, J.)