1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.24/2009. Gangadhar s/o Keshavrao Jadhav - APPLICANT VERSUS 1) Rajesh s/o Subhashrao Bobde and others. - RESPONDENTS ***** Mr.D.A.Karnik, Adv. h/for Mr.Vivek Dhage, Advocate for Applicant; Mr.S.J.Salunke, Adv. for Respondent Nos. 1 & 2. Mr.V.G.Godbharale, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 8TH October,2009. PER COURT : 1) Rule, Rule made returnable forthwith, by consent of parties the matter is finally heard at admission stage. 2) On 6.4.2004 at around 11.00 a.m., the complainant – Gangadhar Keshavrao Jadhav was proceeding to Bus stand of Mardasgaon from village Gopa. The accused nos. 1 and 2 followed him. Accused no.1 – Rajesh asked the complainant as to why he was teasing his sister. Accused no. 2 2 – Suryakant caught hands of the complainant while accused no.1 – Rajesh assaulted the complainant by `Velu’ stick at left hand, wrist, back, chest, waist, left thigh and right elbow. The length of the Velu stick was found to be 3 to 3 ½ ft. The accused also allegedly abused the complainant. The matter was prosecuted against the accused. 3) The learned Judicial Magistrate First Class, on analysis of evidence of the complainant – Gangadhar, P.W.2 – Shivaji; P.W.4 – Ganesh found that it was the accused no.2 – Suryakant, who caught hold hands of the complainant, while accused no.1 – Rajesh assaulted him by Velu stick. The learned Judge recorded corroboration to the statement by F.I.R., Exh. 14. The medical evidence proved through P.W.6 – Dr.Chate and P.W. 9 Dr. Joshi, is also corroborating to the narration of the complainant. The recovery panchanama at Exhibit-23 was established. The nature of injuries suffered by the complainant are recorded by the learned Judge as also by the Appellate Court in their Judgments. The injuries are contusion, caused by hard and blunt object within 24 hours. The injuries were possible by means of Velu stick. X-ray was drawn. There was fracture of stayliod of right ulna, which was a grievous injury caused within 3 72 hours by hard and blunt object. The learned JMFC, at Gangakhed, on the basis of analysis of evidence, by his judgment dated 21.2.2008, convicted the accused no.1 – Rajesh for an offence under Section 325 of IPC and directed to undergo R.I. for six months and to pay a fine of Rs.500/-, while accused no.2 – Suryakant was convicted for the offence punishable under Section 325 of IPC and directed to undergo R.I. for three months with fine of Rs.500/-. 4) The accused challenged the conviction before the Court of Additional Sessions Judge at Gangakhed in Criminal Appeal No.3/2008. The learned Sessions Judge by his judgment and order dated 31.12.2008, recording the findings, confirmed the order of the trial Court holding the accused guilty under Sections 325 r/w 34 of IPC in paragraph 9 of the Judgment. 5) The so-called renegation part flows from paragraph 10 of the Judgment of the learned Additional Sessions Judge, which is crucial in its nature and consequently reproduced in verbatim. “10. So far as quantum of sentence is concerned, it is contended that the accused are young persons. There is no previous conviction. They are not criminal therefore whatever sentence granted by the trial court is 4 excessive liable to be interfered. I do accepted that this argument that accused are not criminal and the sentence awarded by trial court is excessive particularly in case of persons those were not having any enmity previously with the complainant. It seems that they were annoyed upon the complainant because they were suspecting that he is keeping bad eyes upon their sister. But it is not a reason to allow the person to take law in hand and to cause injury to the others. The accused are liable for punishment as they have committed the offence with full understanding Accused no.1 is major of 27 years and accused no.2 – Suryakant was about 30 years. They acted without any provocation. So benefit of Probation of Offenders Act is rightly refused by the trial Court.” 6) The reduction in the punishment or the sentence from six months to 15 days is subject of concern for the complainant assailed in the present criminal revision. 7) The learned Counsel for the accused contended that accused has faced a brunt since the prosecution dated 6.4.2004 by attending the court proceedings and they have settled one of the accused is in employment. There was no voluntary act of causing grievous hurt as is available in terms of Section 322 of IPC. The punishment for voluntary causing grievous hurt in 5 terms of Section 325 needs to be considered in the light of Section 322 of IPC. 8) As indicated herein before, there is already a positive finding of acceptance by the learned Additional Sessions Judge for the guilt of the accused under Section 325 r/w 34 of IPC, consequently, this Court in the revision moved by the complainant, cannot revert back to analysis Section 322 or 324 of IPC in the prospects in which the Counsel for the accused advanced. 9) The sentencing policy has its long drawn effect. Section 354(3) Cr.P.C. contemplates the eventualities of effective punishment which requires reasons to be recorded if maximum punishment is to be given or less than expected punishment under the statute. 10) Section 325 of IPC provides maximum punishment to the extent of seven years and fine. The learned JMFC, as stated above, carried it to six months. There was virtually no justification for the learned Additional Sessions Judge to revert the same to a minimum period of fifteen days and the reasons assigned therefor in paragraph 10 of the judgment are not conceivable, they are not flowing in tune with the settled legal position. The reasoning, as indicated 6 above, does not flow with the fidelity of record. The judgment naturally should not be fixed to be disturbed. 11) The Counsel for the complainant, while emphasizing his point, has relied on the Judgment in the matter of Swamy Shraddananda alias Murali Manohar Mishra Vs. State of Karnataka, reported in AIR 2007 SC 2531 and paragraph 68 thereof is as under : “68. There is a clear and discernible necessity of caution to set the maximum punishment in an offence. And also by implication there must be intensive and exhaustive inquiry into accused related parameters before employing the maximum sentence by a court of law. Therefore, discretion to the judicial in this respect (to declare the maximum punishment) is of utmost critical and seminal value. Reasons must be detailed setting clearly why any punishment other than the maximum punishment will not suffice. This is a general and age-old rule of sentencing which has been statutorily recognized under section 354(3)” 12) It is well settled in Criminal cases character of accused is immaterial by mandate of Section 53 and 54 of the Evidence Act. The same should not be a coining aspect for discussion at the sentencing stage, as has been done by the learned Additional Sessions Judge. The doctrine 7 of proportionality has to be adhered in its strict sense as inadequate sentence in the deserving cases may send a bad message to the society. In the situation, the order recorded by learned Additional Sessions Judge, Gangakhed needs interference. It is consequently set aside and that the order of learned 3rd JMFC, Gangakhed dated 21.2.2009 is confirmed. The accused to surrender to the bail before the learned 3rd Judicial Magistrate, First Class, Gangakhed on 6th November, 2009 and the learned Judge will take steps to put the accused in custody. 13) Rule is made absolute in the aforesaid terms. ( K.U.CHANDIWAL ) JUDGE bdv/crrv24.09