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Judgment
A.P. Bhangale , J.—This Revision is directed against the judgment and order passed by the learned Adhoc Additional Sessions Judge, Amravati who, by the impugned judgment and order dated 5.3.2007 in Criminal Appeal No. 57/1997 decided to confirm the judgment and order which was passed by JMFC ( Court No.4) Amravati on 11.1.1997 in Criminal Case No. 317/1990 for offence punishable under Sections 326, 448 read with section 34 of the Indian Penal Code (in short "IPC"). The learned trial Magistrate had convicted Balu @ Dhanraj Narayan Junghare and Bhupat Narayan Junghare for offence punishable u/s 326 read with section 34 IPC and each of them were sentenced to suffer RI for one year and to pay a fine in the sum of Rs. 3,000/each, in default, to undergo S.I. for three months by each of them. The accused were also found guilty under sections 448 read with section 34 IPC and were directed to suffer RI for three months and to pay a fine in the sum of Rs. 300/in default to undergo SI for one month by each of them.
The facts in brief are that complainant Vinayak Yeshwantrao Junghare was residing in village Rama within the local limits of Walgaon Police Station, Tq. & Dist. Amravati. While complainant was watching Television on 14.9.1990 at about 8.00 to 8.30 hours and serving cattle in the cattle shed, at that time, the accused entered in the cattle shed, armed with wooden logs and started beating the complainant and on his waist, back and hands, with the result, the complainant had suffered following injuries:
(i) contusion over right shoulder posterior aspect size 2 x 1" swelling present;
(ii) contusion over left forearm, lateral aspects in the middle size 2 " x 1" swelling present.
(iii) Contusion in the left number region terms reverse in direction size 5" x 2" age within 12 to 16 hours.
According to the Medical Officer, the above injuries were caused by hard and bunt object like wooden log and Medical Officer had also noticed fracture in vertebra thoracic as mentioned in the injury certificate Exh.29, indicating grievous injury..
The learned trial Magistrate who heard the criminal case found both the accused guilty of offences complained against them under sections 326, 448 read with section 34 IPC. While recording conviction and sentence, the accused were heard on the point of sentence by the learned trial Magistrate. Considering that both the accused were first offenders and had no past conviction against them and further that they were repenting over their act, that they were agriculturists looking after the agricultural fields to earn their bread and middle aged about 30 to 35 years, it was thought not to send them for a longer period in jail since the same would result into hardship to them and their families members. Under these circumstances, recording the reasons for less punishment, the trial Magistrate was pleased to award lesser sentence of one year with fine in the sum of Rs. 3,000/in default of payment of fine, SI for three months for offence punishable u/s 326 read with section 34 IPC; while for offence punishable u/s 448 IPC, the sentence was restricted to R.I. for only three months and fine in the sum of Rs. 300/in default S.I. for one month.
Grievance of the revision petitioner is that despite the reasoned judgment and order showing leniency in the matter of sentencing and the fact that the learned Appellate Judge did confirm the judgment and order impugned as legal and proper and chose to modify the sentence on the ground that the accused were middle aged and there was no past previous antecedents of conviction. It is the grievance of the learned counsel for the revision petitioner that those reasons for leniency were already considered by the learned trial 5 Magistrate for awarding the lesser sentence of imprisonment and fine. It is contended that u/s 326 IPC, the offence when proved shall be punishable with imprisonment for life or with imprisonment of other description for a term which may extend to ten years and fine while for offence punishable u/s 448 IPC, the imprisonment may extend to one year or fine in the sum of Rs. 1000/or with both. Thus, considering the penal provisions in the light of the facts and circumstances of the case, it is contended that despite fact that the complainant had suffered grievous injury as a result of fracture of in vertebra and contusions as observed above, the learned Appellate Judge did commit grave error of law to record utterly inadequate punishment, without any justification.
While opposing the contentions advanced on behalf of the revision petitioner, the learned Advocate representing the convicts/respondents contended that the learned Appellate Judge was pleased to enhance the amount of fine while reducing the imprisonment till rising of the Court and award of compensation was also made in the sum of Rs. 8000/and that being so, the punishment recorded was just and proper. The learned Addl. Public Prosecutor also submitted that it was within the scope and discretion of the learned Appellate Judge to record less sentence of imprisonment and award more amount of fine and compensation as has been done in this case.
Upon hearing the submissions and considering the judgments and orders recorded by the Courts below, one cannot lose sight of the legal position that punishment must be adequate for crime committed in a way that it must be just and appropriate. The object of punishment is to prevent criminal from repeating the crime and to deter prospective criminals others from committing similar offences as also to protect community from the offenders and at the same time the Court may also consider to promote rehabilitation of the offenders while making the offender accountable for crime and while denouncing the conduct of the offender but at the same time harm done to victim and community cannot be forgotten. Therefore, sentence has to be proportionate to crime, considering the nature of crime and circumstances in which the crime was committed. According to learned Advocate for the revision petitioner he had collected information under the Right to Information Act in respect of subsequent pending criminal cases against respondents/accused. To counter the contention, learned Advocate for the respondent/accused contended that he had no instructions about this. Be that as it may, it was possible for the accused/respondents to supply instructions regarding the nature of subsequent pending criminal cases against him and to instruct his Advocate accordingly. It is not necessary to dwell on this point. Learned Advocate for the accused now contended that the impugned judgment and order was passed without considering the facts and circumstances and, therefore, grave illegality was committed as no reasons were recorded so as to confirm the judgment and order passed by the trial Court. According to learned Advocate although this contention was not raised in the memorandum of Revision, the High Court has jurisdiction to revise the order without any application. The accused did not challenge his conviction though confirmed by the Appellate Court nor raised any such contention in the memorandum of Revision. In any case, the reasons which were recorded by the learned Appellate Judge so as to reduce the sentence were neither sound nor proper so as to depart from the reasoned judgment and sentence recorded by the learned trial Magistrate. Under these circumstances, this Court considering the legality and propriety as also correctness of the sentence bearing in mind the relevant penal provisions under sections 326 and 448 IPC must record its conclusion that the learned trial Magistrate had recorded just and proper reasons for to convict as well as to sentence the offenders appropriately according to law. The learned Appellate Judge ought not to have disturbed the reasoned judgment as to sentence awarded by the trial Magistrate. That being so, the judgment and order passed by the learned Judicial Magistrate, First Class, Amravati dated 11th September 1997 in Criminal Case No.317/1990 ought not to have been interfered with by the Appellate Court.
For the reasons stated hereinabove, the impugned judgment and order is set aside. The judgment and order passed by the trial Court shall stand restored. Order accordingly.
At this stage, learned Advocate for the respondents /accused prayed for staying the operation of this judgment and order for a period of six weeks. The learned Advocate for the revision petitioner left it to the discretion of this Court. Hence, the operation of the order shall remain stayed for a period of six weeks from today.