(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. CRIMINAL APPEAL NO. 217 OF 2003 The State of Maharashtra (Through Police Sub-Inspector, Pachod Police Station, Taluka : Paithan, .. Appellant District : Aurangabad) (Original applicant) versus 1. Sk. Isaq Sk. Ahmed, Age : 30 years, Occupation : Agriculture, R/o. Rajangaon Dandga, Taluka : Paithan, District : Aurangabad. 2. Sk. Shamad Sk. Ahmed, Age : 60 years, .. Respondents Occupation and R/o. as above. (Original accused) ....................... Mr. B.V. Wagh, Additional Public Prosecutor, for the appellant. Mr. R.K. Jadhavar, Advocate, for respondent nos.1 and 2. ........................ (2) CORAM : SHRIHARI P. DAVARE, J. Date of reserving the judgment : 29th June 2011. Date of pronouncing the judgment : 1st July 2011. JUDGMENT : 1. The appellant / State has preferred the present appeal for enhancement of sentence under Section 377(1) of the Code of Criminal Procedure, 1973, imposed upon respondent nos.1 and 2 herein. It appears that the respondent nos.1 and 2 herein are original accused nos.1 and 3 in Sessions Case No. 201/1999, who faced the trial along with other four accused for the offences punishable under Sections 147, 148, 307, read with Section 149 of IPC, and alternatively under Section 307, read with Section 34 of IPC, but the other four accused were acquitted in respect of the said charges, by judgment and order dated 10th December 2002, rendered by the learned 1st Ad hoc Additional Sessions Judge, Aurangabad, whereas respondent nos.1 and 2 herein i.e. original accused nos.1 and 3 came to be convicted for the offence punishable under Section 324 of IPC, and were sentenced to suffer imprisonment till rising of the court, and (3) were directed to pay fine of Rs. 1,000/-, each, in default of payment of fine, to suffer rigorous imprisonment for 15 days. Being aggrieved and dissatisfied by the sentence awarded to respondent nos.1 and 2 herein, the appellant / State has challenged the same in the present appeal and prayed for enhancement thereof. 2. Briefly stated, prosecution case is that on 17-9-1997, at about 8.00 a.m., one Sk. Ansar was returning to his house in Ranjangaon-Dandga (Taluka : Paithan), but the accused persons herein obstructed him on the way and abused him on the ground that he did not use to remain in the group / party to which the Chairman and Sarpanch of the village belonged, and asked him, whether he intended to continue his residence in the village, or not, and assaulted him. Hence, one Sk. Afsar i.e. son of complainant, namely, Sk. Yusuf, resident of Ranjangaon-Dandga (Taluka : Paithan), intervened, but the accused persons on account of past quarrel with him, assaulted him also. On learning the aforesaid quarrel by the complainant, namely, Sk. Yusuf, who was conducting his flour mill at about 8.30 a.m. at some distance, the complainant reached there and saw that accused no.1 Sk. Isaq was armed with axe and accused no.2 Sk. Shafi was armed with iron bar, whereas accused no.6 Sk. Ajij was armed with sword, and accused no.3 Sk. Shamad was armed (4) with sword, and accused no.4 Sk. Burhan was armed with iron bar, and accused no.5 Sk. Tahir was armed with iron bar, and the said accused persons assaulted complainant's son, namely, Sk. Afsar by the aforesaid weapons on head and legs, causing bleeding injuries to him. Hence, his nephew, namely, Mhaitu, intervened in the said quarrel, but he also was assaulted by the respondent no.1 herein with axe on head and by respondent no.2 by sword on the legs, whereas the complainant himself was also assaulted by the accused persons on the hand with sword and axe which resulted into injuries. 3. Accordingly, on the complaint of the complainant, offence was registered under Crime No. 106/1997 against the accused persons. The matter was investigated by API Shivshankar Mundhe (PW 9), and after completion of investigation, charge sheet was filed against the accused on 8-1-1998 in the court of Judicial Magistrate (F.C.), Paithan. However, since alleged offences were triable by the Sessions Court, learned Judicial Magistrate (F.C.) committed the said case to the Court of Sessions on 25-6-1999. Charge was framed against the accused persons on 31-12-2001 at Exhibit 17 under Sections 147, 148 and 307 read with Section 149 of IPC, and alternatively, under Section 307 read with Section 34 of IPC. Accused persons pleaded not guilty to the said charges and (5) claimed to be tried. 4. To substantiate the charges levelled against the accused persons, prosecution examined as many as nine witnesses, as mentioned below :- (1) Sk. Yusuf s/o. Sk. Amir (PW 1) - Complainant. (2) Afsar s/o. Sk. Yusuf (PW 2) - Injured. (3) Sk. Mahitu s/o. Sk. Umrao (PW 3) - Eye witness and injured. (4) Sk. Ansar s/o. Sk. Ahemad (PW 4) - Turned hostile. (5) Sk. Babulal s/o. Sk. Mahemad (PW 5) - Eye witness. (6) Sk. Ramzan s/o. Sk. Budhan (PW 6) - Panch to seizure of clothes of injured (Turned hostile). (7) Sk. Dagdu s/o. Sk. Maheboob (PW 7) - Panch to seizure of weapons in respect of accused nos.1, 3 and 4 (Turned hostile) (8) Dr. Ganeshsing Rajput (PW 8) - Who examined the injured persons and issued injury certificates. (9) API, Shivshankar Mundhe (PW 9) - Investigating Officer. (6) 5. The defence of the accused is that on hearing commotion, several persons from the village arrived at the spot and they pelted stones on the complainant and witnesses, in which they sustained injuries. It is also defence of the accused, that present complaint has been filed against them to counter Sessions Case No. 231/2002 which is instituted against the complainant by accused no.1 as the counter blast. In short, the accused claimed that they are innocent and they have been implicated in the present case falsely. 6. After considering oral, documentary and medical evidence adduced and produced by the prosecution, as well as, considering rival submissions advanced by the learned Counsel for parties, as well as, considering defence of the accused persons, learned trial court came to the conclusion that accused nos.1 and 3 are guilty for voluntarily causing hurts to Sk. Mhaitu by dangerous weapons, and therefore, convicted them for the offence punishable under Section 324 of IPC, and sentenced them to suffer imprisonment till rising of the court and directed to pay fine of Rs. 1,000/-, each, and in default of payment of fine, to suffer rigorous imprisonment for 15 days, whereas learned trial court acquitted the other accused persons from the (7) charges levelled against them by impugned judgment dated 10th December 2002, as mentioned herein above. 7. Hence, being aggrieved by the imposition of inadequate sentence upon the respondents i.e. original accused nos. 1 and 3, although they were convicted for the offence punishable under Section 324 of IPC, the appellant / State has challenged the said sentence in the present appeal and prayed for enhancement thereof. Besides this, the State had also preferred Criminal Appeal 216/2003 challenging the acquittal of other accused persons, but leave was refused to file such appeal, by Division Bench of this Court by order dated 2-8-2005. Moreover, it is reported that respondent nos.1 and 2 i.e. original accused nos.1 and 3 have not preferred any appeal challenging aforesaid conviction and sentence inflicted upon them and it is also reported that they have already paid the fine amount. 8. In the aforesaid scenario, the scope of the present appeal is very narrow i.e. to the extent of sentence inflicted upon the respondents herein for the offence punishable under Section 324 of IPC. However, simultaneously, it cannot be ignored that while opposing the present appeal, the respondents may plead for their acquittal or for reduction of the sentence in accordance with Section 377(3) of the Code of Criminal Procedure. (8) 9. Keeping in mind the said aspect and coming to the evidence adduced and produced by the prosecution, and Para Nos. 8 to 17 of the impugned judgment dated 10th December 2002, and more particularly, paragraphs 18 and 19 thereof, it appears that the learned trial court found the evidence of complainant Sk. Yusuf (PW 1), his son Afsar (PW 2), and eye witness Sk. Babulal (PW 5) to be totally unreliable, although two of them were injured. However, learned trial court accepted the evidence of Sk. Mahitu (PW 3) to the extent of injuries sustained by him. The said witness Sk. Mahitu (PW 3) in his deposition narrated that he was assaulted on left leg by accused no.3 i.e. respondent no.2 herein with sword, and accused no.1 i.e. respondent no.1 herein dealt a blow with axe on his head. The said narration of Sk. Mahitu (PW 3) was corroborated by Dr. Ganeshsing Rajput (PW 8), who had noticed incised wound on scalp, on left parietal region of Sk. Mahitu (PW 3). Moreover, there was other incised wound on left leg, lower part, posterior aspect, and contusion on left forearm of Sk. Mahitu (PW 3). Accordingly, finding of the said injuries on the person of Sk. Mahitu, as described by him, at the hands of accused nos.1 and 3 i.e. respondent nos.1 and 2 herein, were corroborated by the said medical evidence and the learned trial court has accepted that much evidence and consequently, convicted accused nos.1 and 3 (9) for the offence punishable under Section 324 of IPC, and apparently, there is no flaw in the observations made by the learned trial court and conclusion drawn in that respect. Moreover, considering the ocular evidence on record and documentary evidence, such as, injury certificate issued by Dr. Ganeshsing Rajput (PW 8), apparently, there is no glaring error in the finding recorded by the learned trial court in respect of the conviction imposed upon the respondents for the offence punishable under Section 324 of IPC, by holding them guilty thereunder, and no interference therein is warranted in the present appeal. 10. As regards the sentence awarded to the respondents for the offence punishable under Section 324 of IPC, learned APP Mr. B.V. Wagh, for the appellant / State, canvassed that awarding imprisonment to the respondents till rising of the court, is too inadequate and even the fine of Rs. 1,000/- imposed upon the respondents is also meagre, considering the involvement and participation of the respondents in the occurrence of the incident and further considering the deadly weapons used by them, such as, axe and sword, respectively, while causing injuries to the victim, namely, Sk. Mahitu (PW 3). Moreover, learned APP further submitted that the sentence awarded to the respondents by the learned trial court is not proportionate to the offence (10) under Section 324 of IPC proved and established against them. Learned APP also further asserted that the respondents herein attacked on the victim with premeditation and with deadly weapons, such as, axe and sword, which itself indicates intention of the respondents to commit serious offence, and the sentence awarded to the respondents is not in consonance with the charge proved against them and hence, it is submitted that the sentence awarded to the respondents deserves to be enhanced by allowing the present appeal. 11. Besides, learned APP for the appellant / State submitted that considering the nature and gravity of the offence and deadly weapons used by the respondents therein, actively participating in the occurrence of the incident, the respondents do not deserve any leniency and hence, deterrent punishment is required to be imposed upon them, modifying and enhancing the sentence and fine imposed upon them, by allowing the present appeal. 12. Adv. Mr. R.K. Jadhavar, for the respondents, countered the said arguments and submitted that considering the oral, documentary and medical evidence on record, and also injuries sustained by the victim, as well as, considering the counter case, learned trial court has rightly awarded the (11) minimum sentence to the respondents, to keep and maintain peace and harmony between two groups i.e. complainant party and accused party, and no interference therein is called for in the present appeal. It is also canvassed by the learned Counsel for the respondents, that the alleged incident occurred in the year 1997 and 14 years have been elapsed thereafter, and now, there is no propriety to enhance the sentence awarded to the respondents, either by sending them to jail or by imposing enhanced fine amount upon them, and accordingly, learned Counsel for the respondents supported the the impugned judgment and submitted that no interference therein is called for in the present appeal, and urged that present appeal be dismissed. 13. Learned Counsel for the respondents also canvassed that the respondents are agriculturists and there are no criminal antecedents of the respondents and their families are dependent upon them, and more particularly, both the parties i.e. complainant party and accused party are residing in the same village, and therefore, at the most, enhanced fine be imposed upon the respondents without saddling any substantive sentence upon them, which would meet the ends of justice. 14. I have considered the ocular, documentary and medical evidence adduced and produced by the prosecution, as (12) well as, considered the submissions advanced by the learned Counsel for parties, and considering the very nature of injuries sustained by Sk. Mahitu (PW 3) i.e. incised wound on the scalp, on left parietal region by axe caused by respondent no.1, and incised wound on left leg, lower part, posterior aspect, and contusion on left forearm caused by respondent no.2 by sword i.e. deadly weapons, respectively, and also considering the involvement and active participation of the respondents in the occurrence of the incident, it is apparently clear that the sentence imposed upon respondents herein is meagre and disproportionate and not in consonance with the charge proved and established against them, and therefore, present appeal deserves to be allowed and sentence awarded to the respondents is required to be enhanced for the offence punishable under Section 324 of IPC. 15. Having comprehensive view of the matter and striking the balance between the aggravating circumstances canvassed by the learned APP for the appellants and mitigating circumstances put forth by the learned Counsel for the respondents, and also considering the very aspect that the incident occurred in the year 1997 and almost 14 years have been elapsed thereafter, there is no propriety in sending the respondents in jail now, by awarding sentence of imprisonment (13) to them, but the said deficit of imprisonment is required to be compensated by awarding enhanced fine amount upon the respondents, and the said fine amount can be reasonably quantified at Rs. 15,000/- to each of the respondents and out of the said fine amount, amount of Rs. 25,000/- deserves to be awarded to the victim Sk. Mahitu (PW 3), which would meet the ends of justice. 16. In the result, present appeal is allowed partly, and in addition to fine awarded to the respondent nos.1 and 2, by the impugned judgment and order dated 10th December 2002, for the offence punishable under Section 324 of IPC, further fine amount of Rs. 15,000/- [Rupees fifteen thousand] is imposed on each of the respondent nos.1 and 2, to be paid by them in the trial court, within a period of four weeks from today, and in default of payment of the said fine within the aforesaid stipulated period, respondent nos.1 and 2 are directed to suffer simple imprisonment for six months, each. If the respondent nos.1 and 2 deposit the fine amount, as directed herein above, amount of Rs. 25,000/- [Rupees twenty five thousand] therefrom be paid to victim Sk. Mahitu (PW 3) by way of compensation. Present appeal stands disposed of accordingly. (14) 17. Copy of this Judgment be forwarded to Trial Court forthwith. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/kapp217