1 Cri.Al.292.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.292 OF 2009 Balwant S/o Bhikaji Gadhave, Age : 59 Years, Occup.: Agriculture, R/o : Ranjangaon Masjid, Tq. Parner, District: Ahemdnagar. ...APPELLANT. VERSUS 1) The State of Maharashtra, ...RESPONDENTS. ... Shri.S.G.Salgare, Advocate holding for Smt.S.S.Jadhav,Advocate for Appellant. Smt.Y.M.Kshirsagar,A.P.P. for Respondent-State ... CORAM: SHRIHARI P.DAVARE, J. DATE : 07TH MARCH, 2011. JUDGMENT : 1. Heard learned counsel for the parties. 2. This Criminal Appeal is directed against the judgment and order dated 27th November, 2006, rendered by Additional Sessions Judge, Ahmednagar, in Sessions Case No. 132 of 2005, thereby convicting accused No.1 Balwant Bhikaji Gadhve 2 Cri.Al.292.09 i.e. Appellant herein under section 323 of the Indian Penal Code and sentencing him to suffer imprisonment till rising of Court and to pay fine of Rs. 5000/-(Rupees Five Thousand), in default, to undergo rigorous imprisonment for one month. 3. Appellant herein i.e. accused No.1 and other three accused persons were charged for the offences punishable under sections 147, 148, 307 and 324 read with section 149 of the Indian Penal Code and Under Section 37(1) read with section 135 of Bombay Police Act, and they were tried for the said offences, in Sessions Case No. 132 of 2005, by the Additional Sessions Judge, Ahmednagar. After considering oral and documentary evidence adduced and produced on record, and also after considering rival submissions advanced by the learned counsel for the parties, learned Sessions Judge, Ahmednagar acquitted accused Nos. 1 to 4 for the offences punishable under sections 147, 148, 307 and 324 read with section 149 of the Indian Penal Code and Under Section 37(1) read 3 Cri.Al.292.09 with section 135 of Bombay Police Act, but accused No.1 appellant herein was convicted for the lessor offence i.e. under section 323 of the Indian Penal Code, sentencing him to suffer imprisonment till rising of Court and to pay fine of Rs. 5000/- (Rupees Five Thousand), in default of payment of fine to undergo for rigorous imprisonment for one month, by judgment and order dated 27th November, 2006, which is under challenge in the present appeal by the appellant original accused No.1. 4. Mr. Salgare, learned counsel for the appellant, canvassed that appellant i. e. original accused No.1 was convicted for the offence punishable under section 323 of the Indian Penal Code and was sentenced to suffer imprisonment till rising of the Court, and accordingly, he has undergone the said sentence. There is no dispute about the same. However, the learned counsel for the appellant argued that, appellant herein was directed to pay a fine of Rs. 5000/-(Rupees Five Thousand) in default of payment of fine to suffer 4 Cri.Al.292.09 rigorous imprisonment for one month for the offence punishable under section 323 of the Indian Penal Code, which is beyond prescribed limit of fine under the said section. Learned counsel submitted that maximum fine for the offence punishable under section 323 of the Indian Penal Code, is up to Rs. 1000/-(Rupees One Thousand and not beyond that. However, learned trial Court has imposed fine of Rs. 5000/-(Rupees Five Thousand) upon the appellant in the instant case, which deserves to be quashed and set aside, although already deposited by the appellant. 5. Smt. Kshirsagar, learned APP, fairly conceded to the said position. 6. After considering oral and documentary evidence on record and also considering the impugned judgment and order dated 27th November, 2006, and the submissions advanced by the learned counsel for the parties, at the outset, it is necessary to reproduce section 323 of the Indian 5 Cri.Al.292.09 Penal Code for ready reference, which reads as follows : “Section 323 : Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.” 7. Text of the section 323 of the Indian Penal Code manifestly makes it clear that imprisonment attracted to Section 323 of the Indian Penal Code is of “either” “or” description i.e. either imprisonment for a term which may extend to one year, or with fine which may extend to Rs.1000/- (Rupees One Thousand) or both. Applying the said parameter of punishment under section 323 of the Indian Penal Code to the instant case, appellant was convicted under section 323 of the Indian Penal Code and sentenced to suffer imprisonment till rising of Court and there is no dispute about 6 Cri.Al.292.09 the same. However, after convicting the appellant under section 323 of the Indian Penal Code, he was directed to pay fine of Rs.5000/-(Rupees Five Thousand) in default of payment of fine to undergo rigorous imprisonment for one month, which is beyond prescribed limit. Hence, imposition of fine beyond limit of Rs.1000/-(Rupees one Thousand) deserves to be quashed and set aside. But, other directions in the impugned judgment and order are required to be maintained. 8. In the result, present appeal is allowed partly, and conviction against the appellant i. e. original accused No. 1-Balwant Bhikaji Gadhave under section 323 of the Indian Penal Code, sentencing him to suffer imprisonment till rising of Courts stands confirmed, whereas imposition of fine of Rs.5000/-(Rupees Five Thousand only)upon him stands modified and fine amount of Rs.1000/- (Rupees One thousand) is imposed upon the appellant, in stead of Rs.5000/-(Rupees Five Thousand), but other directions in the impugned 7 Cri.Al.292.09 judgment and order are maintained and they shall remain same. The amount of Rs.4000/-(Rupees Four Thousand) out of fine amount of Rs.5000/-(Rupees Five Thousand), if deposited by the appellant be refunded to him. Appeal stands disposed of accordingly. Sd/- [SHRIHARI P.DAVARE, J.] MTK