1 Cri-A-5020-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 5020 OF 2010 Nitin Bhiva Lagade ... Applicant Vs. The State of Maharashtra ... Respondent Ms. Indrayani Koparkar, Appointed Advocate, for the applicant. Mr.Y.M.Nakhwa, APP, for the respondent -State. CORAM: J.H.BHATIA,J. DATE : 1st December, 2010. P.C. 1. Heard. 2. This application is made by the accused Nitin Bhiva Lagade, who was convicted and sentenced for the offence punishable under Section 392 read with Sec. 397, under Sections 394, 506 read with Sec. 34 of IPC and under the Bombay Police Act. Another accused Ganesh Mudliyar was also convicted for the same offence and he had preferred Criminal Appeal No.408 of 2009.. The appeal was allowed only in respect of conviction under the Bombay Police Act, while the conviction and sentence for other offences were maintained. He then preferred Criminal Revision Application No.718 of 2009 before this Court. Revision was also partly allowed and he was convicted for the offence punishable 2 Cri-A-5020-10.sxw under Section 392 read with Sec. 34 of IPC simplicitor and the sentence was reduced to R.I. for three years and to pay fine of Rs.500/-. 3. After Revision Application of accused No.2 Ganesh was allowed, he was released from jail. The present applicant, who was accused No.1, has by this application requested that on the principle of parity, a lenient view may be taken in his matter also and suitable order may be passed for his release. 4. However, on perusal of the Judgment in Criminal Revision Application No.718/2009, which was decided on 11.6.2010 by me, the following observations in para 12 of that Judgment will make the picture clear:- "12. On careful perusal of the prosecution evidence, it appears that both the accused first went to the shop of Jaideep and only accused No.1 Nitin @ Pappa was armed with Koyta or sickle and with that weapon he had caused injuries to different witnesses there. None of the witnesses deposed that the accused No.2 Ganesh was holding any weapon at that time. It appears that nobody had seen any weapon in the hands of Ganesh." After observation of the complete evidence, this Court had come to conclusion 3 Cri-A-5020-10.sxw that the accused No.2 Ganesh was not armed with sharp and cutting weapon nor he had used that weapon and therefore Sec.397 of IPC could not be invoked against him. However, in respect of the present applicant, who was accused No. 1, it is clear that he was armed with Koyta and he had caused injuries to several witnesses with that Koyta and, therefore, Section 397 of IPC would be applicable to him. Firstly he had not preferred any appeal nor any revision application and secondly, he cannot be treated on par with the accused No.2 Ganesh because he himself was armed with Koyta which he had used to cause injuries, while Ganesh was not armed with any such weapon. 5. In view of the above, the Application stands rejected. The accused/applicant be informed accordingly. (J.H.BHATIA,J.)