ORDER
1. Since both these revision arise out of a common judgment, they are being disposed of by this common judgment.
2. Criminal Revision Application No. 81 of 1988 has been filed at the instance of the accused who convicted by the trial Court for the offence under S. 325 of the Indian Penal Code and was sentenced to a fine of Rs. 500/- and R.I. for one day i.e. till rising of the Court. That order was challenged by the accused before the Session Judge, Nagpur. The learned Session Judge vide order dated 19-4-1988 dismissed the appeal. However while dismissing the appeal. he modified the sentence to two months' rigorous imprisonment and a fine of Rs. 500/-. It is this order which is being challenged before me by way of Criminal Revision Application No. 81 of 1988.
3. Criminal Revision Application No. 168 of 1988 is filed at the instance of complainant Shrawan for enhancement of sentence. According to him, the sentence of two months rigorous imprisonment with a fine of Rs. 500/- for offence under S. 325 of the Indian Penal Code is ridiculous and therefore, it should be enhanced. It is necessary to give certain background in order to appreciate the peculiar fact and circumstances which have given rise to the present revisions.
4. The Judicial Magistrate, First Class. Nagpur had convicted the accused of the offence under S. 325 of the I.P.C. and sentenced him till rising of the Court and a fine of Rs. 500/-. Complainant Shrawan filed Criminal Revision No. 251 of 1985 before this Court for enhancement of sentence. The High Court allowed the revision vide order date 14-11-1986 and sentenced the accused to two months rigorous imprisonment and a fine of Rs. 500/-. Criminal Application No. 802 of 1986 was filed by the accused under S. 482 of the Code of Criminal Procedure before this Court, seeking direction that in view of the pendency of his appeal before the Sessions Judge, Nagpur, a direction should be issued that the Sessions Judge shall decide the appeal ignoring the sentence imposed by the High Court vide order dated 14-11-1986 passed in Criminal Revision Application No. 251 of 1985. The High Court allowed this application and made it clear vide order dated 1-12-1986 that the Sessions Judge should dispose of the appeal on merits ignoring the order passed in Criminal Revision Application No. 251 of 1985 in the matter of enhancerment of sentence. The High Court further clarified that none of the parties brought to its notice that the appeal of the instance of the accused challenging his conviction under S. 325 of the I.P.C. was already pending before the Sessions Judge, Nagpur. It was after these developments that the appeal (Criminal Appeal No. 184 of 1985) came to be disposed of by the Sessions Judge, Nagpur. vide order dated 19-4-1988. It may be mentioned here that notwithstanding the order of the High Court that the Sessions Judge should dispose of the appeal on merits, the Session Judge took into consideration the order of the High Court passed on 14-11-1986 enhancing the sentence to two months. Following observations of the Session Judge leave no doubt that not only he took into consideration the order of the High Court dated 14-11-1986 but he thought that he was bound by the same. The relevant observations in para 15 of the judgement are reproduced below :
'Now, coming to the question of the sentence. I feel that I am bound by the observations of the High Court in Criminal Revision Application No. 251/85. This may indeed involve enhancement of the sentence. but in view of the clear directions by the High Court in that revision application that the sentence imposed by the High Court shall be implemented if the appeal fails.'
It is thus clear that essentially on account of the order of the High Court passed in Criminal Revision Application No. 251 of 1985. that the Sessions Judge thought that it was necessary for him to impose a sentence of two months' rigorous imprisonment and a fine of Rs. 500/-.
5. Mr. Somalwar, learned counsel appearing on behalf of the accused. vehemently argued that the conviction and sentence of the accused cannot be sustained in view of the glaring discrepancies in the evidence led by the prosecution. According to him, the witnesses who were named in the first information report as eye-witnesses were not examined by the prosecution, and instead the witnesses who were not named, were examined. He has further pointed out that P.W. 3 Abdul Hafiz and P.W. 4 Bhola are not the eye-witnesses and yet their evidence has been treated as the evidence of the eyewitnesses. He has also submitted that the evidence of the prosecution witnesses inter se is contradictory and inconsistent and therefore it has to be discarded.
6. I have given anxious consideration to these submissions and after hearing him at some length. I think, it would not be possible for me to appreciate the evidence afresh while exercising the revisional jurisdiction. Stiffice it to say, the incident was reported immediately by the complainant and relevant details were mentioned in the first information report itself. There is also medical evidence which is supported by the oral evidence that the complainant suffered a fracture to his left ulna. According to Mr. Somalwar, since the X-ray plates were not produced by the prosecution it would not be safe to conclude that the complainant suffered a fracture. It is true that the X-ray plates were not produced, but none the less the evidence of P.W. 8 Dr. Kakde coupled with the evidence of the complainant leave no doubt that the complainant suffered a fracture. The doctor has specifically deposed that he noticed the fracture and in cross-examination there is no challenge to this part of the evidence. Having regard to these facts. I do not see any reason to differ with the concurrent finding of fact that the complainant suffered a fracture.
7. Mr. Somalwar submitted that the Sessions Judge has no power to enhance the sentence which was imposed by the trial Court. According to him, the Sessions Judge could either acquit the accused allowing the appeal or dismiss the same. He could not have enhanced the sentence. Mr. Naik and Mr. Ahmed appearing on behalf of the State, have pointed out that the Sessions Judge has no power to enhance the sentence. Even Mr. Ziauddin, learned counsel for the complainant. has fairly conceded that the Sessions Judge has no power of enhancement of sentence. The power of enhancement is only available to the High court under S. 377 of the Code of Criminal Procedure. In view of this, there can be no doubt that the order of the Sessions Judge on the point of sentence is wholly without jurisdiction. However. Mr. Ziauddin submitted that the High Court in Criminal Revision Application No. 251 of 1985 has already enhanced the sentence to two months at the instance of the complaint and, therefore, no fault could be found with the order of the Sessions Gouda even on the point of sentence. In my view, this argument cannot be accepted. As I have already shown above, the High Court passed the order in Criminal Revision Application No. 251 of 1985. enhancing the sentence thinking that the accused did not challenge his conviction and no appeal was pending before the Sessions Judge. None of the parties brought it to the notice of the High. Court that appeal was pending. The accused realised that mistake and therefore he moved the High Court by way of Criminal Application No. 802 of 1986, under S. 482 of the Code of Criminal Procedure. seeking direction to the Sessions Judge who was seized of his Appeal No. 184 of 1985, that the said appeal should be decided without taking into consideration the order of the High Court in Criminal Revision Application No. 251 of 1985. In view of this, I have no doubt that the order of the High Court in Criminal Revision Application No. 251 of 1985 could not have been taken into consideration at all by the Sessions Judge, Nagpur, Having regard to these facts, I have no doubt that the order of, the Sessions Judge Nagpur, on the point of sentence, was wholly without jurisdiction, though on merits he, could allow or dismiss the appeal which was filed before him under S. 374 of the Code of Criminal Procedure.
8. The question that falls for consideration before me is as to whether Criminal Revision filed by the complainant for enhancement of sentence is tenable. I have already shown above that the complainant had earlier moved the High Court for enhancement of sentence, challenging the order of the trial Court in Criminal Revision Application No. 251 of 1985. However, because of the subsequent developments that order could not be taken into consideration. The powers of the High Court for enhancement of sentence are exhaustive under S. 401 of the code of Criminal Procedure, which reads thus :
'401. High Court of any powers of revision :
(1) In the case of any proceeding the record of which has been called for itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by S. 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by S. 392.'
It is quite clear from the wordings of S. 401 that the Code has conferred extensive powers on the High Court as that of S. 386 and other provisions of the Code. It appears from the wordings of S. 401 that the High Court in a given case can even send for the record and examine and pass such orders as may be necessary in the interest of justice. Since it has already been brought to the notice of this Court of the instance of the complainant that the sentence imposed. on the accused is inadequate and out of proportion looking to the nature of the offence. It is true that the sentence of two months is not the proper sentence for an offence under S. 325 of the I.P.C. Mr. Somalwar has submitted that the incident is of the year 1982 and since about seven years a sword has been hanging on the accused, this is a second round of litigation up to the High Court, hence a lenient view should be taken. It is true that it would not be expedient to send him to jail after about seven years even though he is being convicted for the offence under S. 325 of the I.P.C. I think, in view of the peculiar facts and circumstances of the case, ends of justice would be met if he is sentenced to a fine of Rs. 1,500/- in default of payment of fine to undergo rigorous imprisonment for two months and to undergo imprisonment till rising of the Court. It is further directed that out of the fine, if paid Rs. 1000/- will be paid to the complainant Shrawan. One month's time is granted to the accused to pay the amount of fine. Both the revisions are disposed of accordingly.
9. Order accordingly.