1 Criminal Rev.Appl.No.179 of 2008 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.179 OF 2008 Gajanan S/o.Sambhaji Ingole, Age-28 years, Occu-Labour, R/o.Gugalpimpri, Tq.Sengaon, Dist. Hingoli APPLICANT VERSUS State of Maharashtra Through Police Station, Goregaon, Tq.Sengaon, Dist. Hingoli RESPONDENT Mr.C.V.Thombre, learned counsel for the applicant.(Appointed) Ms.Y.M.Kshirsagar, learned A.P.P. for respondent/State (CORAM : A.V.POTDAR, J.) DATE : 16/08/2011 ORAL JUDGMENT : 1. By the present criminal revision application, the revision applicant has challenged the judgment and order dated 03/07/2008 passed in Criminal Appeal No.13/2004 by which the Appellate Court has confirmed the conviction of the applicant u/s. 307 of the IPC for which he was sentenced to suffer 5 years RI and to pay fine in the sum of Rs.1,000/- with default stipulation to undergo further RI for 6 months and also convicted u/s. 324 of the IPC for which he was sentenced to suffer RI for 2 years and to pay fine in the sum of Rs. 2 Criminal Rev.Appl.No.179 of 2008 500/- with default stipulation to undergo further RI for 3 months by judgment dated 04/08/2004 in Sessions Case No.8/2003. 2. Record shows that Rule was issued on 20/08/2009. 3. Such of the facts as are necessary for the decision in this criminal revision can be summarized as : On 22/08/2008, at about 9.00 a.m., appellant/revision applicant was cutting branches of Sirus tree, standing in the compound of Shankar Khode. Venubai, wife of Shankar Khaode had seen the appellant with an axe. She requested the applicant not to cut the branches. Then Shankar Khode came and told his wife Venubai not to talk with applicant. In the meantime, appellant alighted from the tree and assaulted with the axe on the head of Shankar. He had sustained bleeding injuries. His wife Venubai tried to intervene, but applicant also assaulted with axe on her, but while preventing the blow, she had received bleeding injury on her shoulder. Initially both of them were taken to Local P.H.C. From where, they were taken to Civil Hospital, Nanded, and then Shankar was shifted to Private Hospital for further treatment. Complaint was registered in Goregaon Police Station on the report given by Venubai, wife of Shankar. On the basis of said report, an offence was registered vicde CR No.73/2002 in Goregaon Police Station of Dist. Hingoli. Complaint was lodged against the applicant, his brother Subhash and his father Sambhaji for an offence punishable u/s. 307, 3 Criminal Rev.Appl.No.179 of 2008 504, 509 and 324 r/w. 34 of the IPC. On completion of investigation, charge sheet was filed against the applicant and 2 others. They were tried by Ad-hoc Assistant Sessions Judge, Hingoli in Sessions case No.8/2003. By judgment dated 04/08/2004, learned Trial Court convicted the appellant accused for an offence punishable u/s. 307, 324, for the assault on Shankar and his wife Venubai, while acquitted brother and father of the applicant namely Subhash and Sambhaji. Admittedly, acquittal was not challenged by the State or by the original complainant before this Court. But the judgment of conviction of applicant was challenged before the Additional sessions Judge, Hingoli in Criminal Appeal No.13/2004. By judgment and order dated 03/09/2008, the Appellate Court upheld the judgment of conviction recorded against the applicant as stated above for the offence punishable u/s. 307, 324 of the IPC. Correctness of this judgment is questioned before this Court. 4. In its revisional jurisdiction, this Court has very little scope to interfere in the findings recorded by the two courts below. Learned Lower Court as well as the First Appellate Court, relying on the evidence of P.W.No.5 Venubai, the injured eye witness and complainant and the evidence of Shankar (P.W.No.6), who had sustained head injury at the hands of revision applicant is amply corroborated by the evidence of P.W.No.1 Dr.Shounak, who had treated injured Venubai and Shankar. Evidence of P.W.No.5 Venubai and P.W.No.6 Shankar, as to how they had sustained the injuries is 4 Criminal Rev.Appl.No.179 of 2008 not shaken in their cross examination. Injuries sustained by them were fully corroborated by the evidence of Dr.Shounak (P.W.No.1) and Dr.Jadhav (P.W.No.7), in whose hospital, Shankar was later on operated. In view of the testimony of the injured witnesses to the incident, the injuries they have sustained is not only corroborated, but also supported by the evidence of Dr.Shounak (P.W.No.1 and Dr.Jadhav (P.W.No.7), and is also not shaken in their cross examination. Further to this, the weapon used to assault P.W.No.5 and P.W.No.6, the axe, was recovered at the instance of applicant, which recovery is established from the evidence of P.W.No.3 Ramesh Shinde. Overall re-appreciation of the evidence led before the Trial Court, First Appellate Court concluded that the offence for which the revision applicant is charged and convicted is proved beyond reasonable doubt. Thus on perusal of the judgment of the learned Lower Court and the First Appellate Court, there is no scope for any interference in the findings recorded by both the courts below to come to the conclusion that the applicant is guilty for an offence punishable u/s. 307, 324 of the IPC. Record received from the Lower Court shows that the fine amount was deposited by the revision applicant in the Lower Court. 5. During the course of submissions across the bar by learned counsel Shri.C.V.Thombre, appointed on behalf of revision applicant, it is urged that as there is con-current findings of both the Courts below in holding the revision applicant guilty for an offence 5 Criminal Rev.Appl.No.179 of 2008 punishable u/s. 307, 324 of the IPC. There is very little scope for interference, but as no illegality is brought to my notice from the evidence led before the Lower Court, on the basis of which, the applicant was found guilty for an offence punishable u/s. 307, 324 of the IPC, this Court find no reason to interfere in the findings recorded by both the Courts below. 6. Then learned counsel for applicant would urge that the First Appellate Court has rendered its judgment on 03/07/2008. Revision applicant was taken in custody on the date of pronouncement of the judgment. At the time of incident, age of the revision applicant was of 25 years. There was dispute over the boundary and the standing Sirus tree, whether is standing in the courtyard of the complainant or in the land of the present applicant. Due to longstanding dispute between the parties, the incident had occurred. In view of findings of both the Courts below, even there is no scope to interfere, learned counsel for applicant would urge that considering the tender age of the applicant at the time of commission of offence and already the applicant has undergone the punishment for more than 3 years, it is requested that so far as there is no minimum punishment provided and considering the punishment provided under the Law, he had requested that if the fine amount is increased and from the increased fine amount, part amount is paid to the complainant by way of compensation, and the substantive sentence be reduced to the extent the applicant has already 6 Criminal Rev.Appl.No.179 of 2008 undergone, then it will meet the ends of justice. 7. Per contra, learned A.P.P. would urge across the bar that as both the Courts below have come to the conclusion that applicant is guilty for an offence punishable u/s. 307, 324 of the IPC, no interference is required in the conviction and sentence recorded by both the courts below, in exercise of the revisional jurisdiction of this Court. 8. There is no duality of opinion that there is no fault in the con- current findings recorded by both the Courts below, which require any interference at the hands of this Court. The limited scope for consideration and decision in this revision is whether any modification is required in the conviction and sentence awarded by both the courts below. No doubt, at the time of incident, age of the present applicant was of 25 years. His father was aged about 63 years who was also arrayed as an accused in the commission of offence, but he was acquitted. There is no doubt that old father of the applicant is depend upon him. Lastly and most importantly, even though there is con-current findings recorded by both the Courts below, nothing is brought on record in the evidence of both the doctors examined before the Courts below that if no instant treatment was provided to Shankar, the injuries may likely to cause death. If it is so, considering the nature and circumstances in which the incident had occurred, in the discretion of this Court, this Court 7 Criminal Rev.Appl.No.179 of 2008 find it fit to maintain the conviction, but to modify the sentence. 9. In the premise, criminal revision application to the extent of conviction is dismissed. However, sentence of the revision applicant for the offence punishable u/s. 307, for which he was sentenced to suffer RI for 5 years, and to pay fine in the sum of Rs.1,000/- is hereby modified and he is now sentenced to suffer RI for 3 years and to pay fine in the sum of Rs.10,000/-, in default to suffer further RI for 1 year. Conviction and sentence of the applicant is maintained for an offence punishable u/s. 324 of the IPC. Both the sentence to run con-currently. Applicant has already undergone the substantive sentence of 3 years. On his payment of fine amount, which is enhanced in this revision application, he be released forthwith, if not wanted in any other case. If the enhanced fine amount is deposited by the applicant, an amount of Rs.8,500/- be paid to the injured Venubai Khode (Complainant) or her husband Shankar Khode. Fine amount deposited by the applicant in the sum of Rs.1500/- before the Lower Court to be adjusted towards the enhanced fine amount today ordered. 10. Revision Application stands disposed of accordingly. Rule made absolute as indicated above. 11. Before parting with the judgment, I have to appreciate the able assistance given by Shri.C.V.Thombre, advocate appointed to 8 Criminal Rev.Appl.No.179 of 2008 represent the revision applicant. I, quantify the fees payable to Shri.C.V.Thombre in the sum of Rs.3,500/-. (A.V.POTDAR, J.) khs/AUG.2011/cri.rev.179-08