1.00. Present Criminal Appeal under section 377 of the Code of Criminal Procedure has been preferred by the appellant – State of Gujarat for enhancement of the sentence imposed by the learned Sessions Judge, Patan in Sessions Case No.10 of 2011 dtd.24/6/2011, by which though the learned Sessions Judge has convicted the original accused for the offence punishable under section 324 of Indian Penal Code and has convicted the original accused no.2 for the offence punishable under section 323 of Indian Penal Code, has imposed punishment of fine only. 2.00. That the respondent Nos.1 and 2 herein – original accused nos.1 and 2 along with one another accused came to be tried by the learned Sessions Court, Patan for the offences punishable under sections 323, 324, 504, 506(2) read with section 114 of Indian Penal Code and on conclusion of the trial, the learned Sessions Court has convicted the original accused No.1 – Raghubhai Jakshibhai Vaghari for the offence under section 324 of Indian Penal Code and has convicted original accused no.2 - Jethabhai Jakshibhai Vaghri for the offence under section 323 of Indian Penal Code. However, has imposed punishment of fine only, i.e. imposed fine of Rs10,000 upon the original accused No.1 – Raghubhai Jakshibhai Vaghri for the offence under section 324 of Indian Penal Code and imposed fine of Rs1,000/- upon the original accused No.2 – Jethabhai Jakshibhai Vaghri for the offence under section 323 of Indian Penal Code and has acquitted the original accused for the rest of the offences.
2.01. It is required to be noted that as such even the learned Sessions Judge has not passed any order to undergo sentence, in case of default in making payment of fine.
2.02. Being aggrieved by and dissatisfied with the Judgement and Order passed by the learned Sessions Judge, Patan in not imposing any punishment and imposing fine only upon the original accused Nos.1 and 2, appellant – State has preferred present Criminal Appeal under section 377 of the Code of Criminal Procedure.
3.00. Today when the present appeal is taken up for final hearing, Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of the appellant – State has vehemently submitted that in the facts and circumstances of the case, when a clear case for the offence under sections 323 and 324 of Indian Penal Code has been made out and the manner in which the offence was committed by the accused persons and the accused persons gave iron blow on the vital part of the body i.e. head over and above hand on respective persons, the learned Sessions Curt has materially erred in not imposing any sentence and imposing fine only.
3.01. It is submitted that as such there is no justification in not imposing any sentence and to impose fine only. It is submitted that even no cogent reasons for not imposing the sentence and in imposing fine only, have been assigned.
3.02. It is submitted that so far as offence under section 324 of Indian Penal Code is concerned maximum punishment is three years and for the offence under section 323 of the Indian Penal Code maximum punishment is one year or fine or both. Therefore, it is requested to modify the impugned Judgement and Order passed by the learned Sessions Court and to impose sentence upon the original accused persons for the offences punishable under sections 323 and 324 of Indian Penal Code.
3.03. He has also relied upon the decision of learned Single Judge reported in 1997 (1) GLR 441, in which in similar facts and circumstances, when the learned trial court imposed punishment of fine only for the offence under section 324 of Indian Penal Code, the learned Single Judge has imposed punishment of sentence of four months.
By making above submissions and relying upon above decision, it is required to allow the present appeal.
4.00. Mr.Y.N. Thakore, learned advocate has appeared on behalf of the respondent Nos.1 and 2 – original accused Nos.1 and 2. though he has tried to oppose the present appeal by submitting that in the facts and circumstances of the case, more particularly there was cross case, no illegality has been committed by the learned Sessions Curt in imposing fine only.
4.01. It is further submitted that as rightly observed by the learned Sessions Court, there was no criminal intention on the part of the original accused to commit offence and therefore, it is requested not to interfere with the discretion exercised by the learned session Judge.
4.02. It is submitted that for the offences punishable under sections 323 and 324 of Indian Penal Code , the learned Magistrate and/or trial court can impose punishment of sentence or fine or both. Therefore, it is submitted that it is the discretion of the learned trial court to impose either punishment of sentence or fine or both. Therefore, it is submitted that in the facts and circumstances of the case when the learned trial court has exercised the discretion and has imposed punishment of fine only, the same is not required to be interfered with by this Court.
No other submissions have been made.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgement and order of conviction and sentence passed by the learned Principal Sessions Judge, Patan.
5.01. At the outset, it is required to be noted that the respondents herein – original accused Nos.1 and 2 have been convicted by the learned Sessions Judge, Patan for the offences punishable under sections 324 and 323 of Indian Penal Code, respectively. The respondent No.1 – original accused No.1 has been convicted for the offence punishable under section 324 of Indian Penal Code and the respondent No.2 – original accused No.2 has been convicted for the offence under section 323 of Indian Penal Code. While convicting the original accused No.1 for the offence under section 324 of Indian Penal Code, the learned Sessions Judge has imposed punishment of fine of Rs.10,000/- only and not only that, even has not passed any further order to undergo sentence in default in making payment of fine. Similarly, while convicting the original accused No.2 for the offence under section 323 of Indian Penal Code, the learned Sessions Judge has imposed fine of Rs.1000/- only and not only that has not passed any further order to undergo sentence in default of making payment of fine. Thus, while convicting the original accused Nos.1 and 2 for the offences punishable under sections 324 and 323 of Indian Penal Code respectively, the learned Sessions Judge has not imposed any punishment of sentence and has imposed fine only and therefore, the short question which arises for consideration of this Court is, whether in the facts and circumstances of the case the learned Sessions Judge is justified in not imposing any sentence and imposing fine only?
5.02. It is required to be noted that the original accused No.1 has caused injury to the complainant by iron pipe on the vital part of the body i.e. on head and has also caused injury to the son of the complainant by iron pipe and even original accused No.2 – Jethabhai Jakshibhai has also caused injury to one Maganbhai- brother of the original complainant on hand by iron pipe. It is true that the dispute arose as the niece of the accused ran away with the daughter of the complainant. However, the manner in which the offence has been committed by the accused persons and have caused injury to the complainant and her son and brother by iron pipe, it appears that imposition of fine of Rs.10,000/- and Rs.1,000/-, respectively only upon the accused Nos.1 and 2, is not sufficient.
5.03. It is true that for the offences under sections 324 and 323 of Indian Penal Code Court may impose sentence or fine or both. Thus, the learned trial court has discretion to impose either sentence or fine or both. But such a discretion has to be exercised by the Court judiciously. The broad object to punish an accused found guilty is to impress on the guilty party that commission of crime does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The learned trial court is also required to see that the sentence to be appropriate and the sentence should neither be too harsh nor too lenient. Therefore, considering the facts and circumstances of the case narrated hereinabove and the manner in which the accused persons have committed offence under sections 324 and 323 of the Indian Penal Code, respectively and caused injuries to the complainant, her son and brother by iron pipe, it appears that the learned Sessions Judge has not exercised the discretion judiciously while passing order of punishment and imposing fine only and in not imposing any sentence. In the facts and circumstances of the case, it appears that while convicting the respondents herein - original accused Nos.1 and 2 for the offence under sections 324 and 323 of Indian Penal Code respectively, if punishment and sentence of Rigorous Imprisonment for a period of nine months with fine of Rs.10,000/- and in default to make payment of fine, further Rigorous Imprisonment for a period of three months is awarded upon the respondent No.1 herein - accused No.1 and if punishment and sentence of Rigorous Imprisonment for a period of four months with fine of Rs.1,000/- and in default to make payment of fine, further Rigorous Imprisonment for a period of one month is awarded upon the respondent No.2 herein - accused No.2 it would be just and proper and commensurate with the offence proved and would serve the ends of justice.
6.00. In view of the above and for the reasons stated above, present Criminal Appeal succeeds in part and the impugned judgement and order of conviction and sentence passed by learned Sessions Judge, Patan in Sessions Case No.10 of 2011 dtd.24/6/2011 is hereby modified so far as imposing sentence is concerned and it is ordered that the respondent No.1 herein – original accused No.1 to undergo Rigorous Imprisonment for a period of nine months with fine of Rs.10,000/- and in default to undergo further Rigorous Imprisonment for a period of three months for the offence punishable under section 324 of Indian Penal Code and punishment is imposed upon the respondent No.1 – original accused No.1 – Vaghari Raghubhai Jakshibhai, accordingly. The respondent No.2 herein – original accused No.2 named Vaghari Jethabhai Jakshibhai is ordered to undergo Rigorous Imprisonment for a period of three months with fine of Rs.1,000/- and in default to undergo further Rigorous Imprisonment for a period of one month for the offence punishable under section 323 of Indian Penal Code and punishment is imposed upon the respondent No.2 – original accused No.2 accordingly.
At this stage Mr.Thakore, leaned advocate appearing on behalf of the respondents – original accused has requested to grant time upto 19th November, 2012 to surrender. Hence, time is granted to the respondents herein - original accused Nos.1 and 2 to surrender to undergo sentence, as awarded hereinabove, upto 19th November, 2012 meaning thereby the respondents – original accused Nos.1 and 2 shall surrender to the Jail Authority on or before 19th November, 2012 to undergo sentence, as stated hereinabove. Present appeal is allowed to the aforesaid extent.
rafik [M.R. SHAH, J.]