-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 687 OF 2007 CRIMINAL APPEAL NO. 687 OF 2007 CRIMINAL APPEAL NO. 687 OF 2007 1. Santosh Sharma @ Vinod Kanhaiyalal .. Appellant Sharma, (Accused No.1) Convict No. B/5880. At Kolhapur Central Prison, Kalamba Dist. Kolhapur. V/s. The State of Maharashtra .. Respondent. (through Worli Police Station) --- Through Jail : Mr.Murtaza Najmi,Advocate appointed for the Appellant. Mr.A.S.Shitole, APP for the State. --- WITH WITH WITH CRIMINAL APPEAL NO. 692 OF 2007 CRIMINAL APPEAL NO. 692 OF 2007 CRIMINAL APPEAL NO. 692 OF 2007 1. Sunildutta Verma @ Kiran @ Sonu .. Appellant Girishchandra Verma (Accused No.2) Convict No. B/5881. At Kolhapur Central Prison, Kalamba Dist. Kolhapur. V/s. The State of Maharashtra .. Respondent. (through Worli Police Station) --- Through Jail : Mr.Murtaza Najmi,Advocate appointed for the Appellant. Mr.A.S.Shitole, APP for the State. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 27th FEBRUARY, 2009. DATED : 27th FEBRUARY, 2009. DATED : 27th FEBRUARY, 2009. P.C. P.C. P.C. : -: 2 :- 1. The appellant in criminal appeal no. 687 of 2007 is accused no.1 and appellant in criminal appeal no. 692 of 2007 is accused no.2 in sessions case no. 882 of 2005. Both the accused were prosecuted for the offence punishable under sections 452, 342, 392,397 read with section 34 of the Indian Penal Code. The learned 12th Adhoc Additional Sessions Judge at Sewree, Mumbai by her impugned judgment and order dated 21.02.2007 convicted both the appellants -accused for the offence punishable under sections 452, 342, 392 read with section 34 of the IPC. The appellants accused were, however, acquitted for the offence punishable under section 397 read with section 34 of the Indian Penal Code. 2. For the offence punishable under section 452 read with section 34, the accused were sentenced to suffer R.I. for two years and also to pay a fine of Rs.1000/- each and in default to suffer further R.I. for one month, which runs in excess of the aforesaid substantive sentences of imprisonment as provided under section 64 of the IPC. 3. For the offence under section 342 read with section 34 of the IPC, the accused were sentenced to suffer S.I. for one year and also to pay a fine of Rs. 500/- each and in default to suffer further period of S.I. for two months, which runs in excess of the aforesaid -: 3 :- substantive sentence as provided under section 64 of the IPC. 4. For the offence punishable under section 392 read with section 34, the accused are further sentenced to suffer R.I. for two years and also to pay a fine of Rs. 1000/- each and in default to suffer further period of R.I. for three months, which runs in excess of the aforesaid substantive sentence of imprisonment as provided under section 64 of the IPC. 5. By clause 7 of the operative part of the impugned judgment and order, the above sentences awarded to the accused persons on different counts are ordered to run concurrently, as provided under section 31 of the Cr.PC. 6. Mr. Najmi, learned Advocate appointed for the appellants- accused submitted that clause 7 of the operative part of the order was not given effect by the Superintendent Kolhapur Central Prison, Kalamba. He submits that it appears that the effect was not given on the ground that the said portion is hand written portion. These appeals are, therefore, filed for obtaining directions that the substantive sentences be ordered to run concurrently. He submitted that so far as another prayer in the above appeals viz. quashing and setting -: 4 :- aside the fine amount and in default to suffer further sentences is concerned he is not pressing the same in as much as both the accused were not on bail during trial and that in any case, the appellants -accused must have already undergone the substantive sentences. 7. Mr. Shitole, learned APP has not disputed the above facts. 8. The date of incident is 3rd June, 2005. The accused were arrested on 04th of June, 2005 under the panchanama at Exh. 68. It appears that the accused were not on bail during the pendency of the trial. The accused did not apply for bail during the pendency of the above appeals and therefore, as on today, they must have completed more than two years in the custody. 9. The facts mentioned above shows that there is substance in the submission of Mr.Najmi that the clause 7 of the operative part of the order was not given effect by the Superintendent, Kolhapur, Central Prison at Kalamba. I have verified the original copy of the impugned judgment and order and I am satisfied myself about the existence of the clause 7 in the operative part of the order, making substantive sentences to run concurrently as provided under section 31 of the Cr.P.C.. If that be so, both the -: 5 :- appellants accused ought to have been released after completion of two years of period in custody and the sentences awarded, in default of payment of fine. 10. Facts mentioned above disclose that the appellants accused have undergone three and half years sentence and therefore, in my view the appellants accused should be released forthwith, if not required in any other case. 11. In view of the above observations, both the appeals will not survive and the same are disposed of accordingly. (R.V.MORE,J.) .....