APEAL. 559, 636 - 10, 153, 1380-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 559 OF 2010 AND CRIMINAL APPLICATION No. 1248 OF 2010 Ganesh Vinay Bhosale ... Appellant (Orig. Accused No. 5) Vs. The State of Maharashtra ... Respondent WITH CRIMINAL APPEAL No. 636 OF 2010 Justline @ Sajju @ Pillaey ... Appellant s/o Mathew Fernandes (Orig. Accused No. 7) Vs. The State of Maharashtra ... Respondent WITH CRIMINAL APPEAL No. 153 OF 2011 AND CRIMINAL APPLICATION No. 480 OF 2011 1. Rakesh @ Raju Ashok Gurav ... Appellants 2. Mohd. Rafique @ Mamu @ Rafique (Original Batla Kansari Accused No.1 & 4) Vs. The State of Maharashtra ... Respondent WITH CRIMINAL APPEAL No. 1380 OF 2011 AND CRIMINAL APPLICATION No. 1344 OF 2011 Pradeep Purushottam Ijawa ... Appellant (Orig. Accused No. 6) APEAL. 559, 636 - 10, 153, 1380-11 - 2 - Vs. The State of Maharashtra ... Respondent *** Mr. Rahul Arote, for the Appellant in Cri. Appeal No. 559/2010. Ms. Pooja Bhojne a/w Nitin Sejpal, for the Appellant in Cri. Appeal No. 636/2010. Mr. Aniket Vagal, for the Appellants in Cri. Appeal No. 153/2011 and 1380/2011. Mr. P. S. Hingorani, APP for the Respondent-State. *** CORAM : V. M. KANADE, & M. L. TAHALIYANI, JJ. DATE : DECEMBER 14, 2011 PC: 1. Original Accused Nos. 1 & 4 ( appellant Nos. 1 & 3 in Cri. Appeal No. 153/2011) have been convicted for the offence punishable under Section 120-B read with Section 395 of the I. P. Code and are sentenced to suffer rigorous imprisonment for seven years and fine of Rs. 5,000/-; in default of payment of fine to suffer further rigorous imprisonment for one year. They are also convicted under section 3(i)(ii) of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as the “MCOC Act”) and are sentenced to suffer rigorous imprisonment for seven years and pay fine of Rs. five lakhs; in default of payment of fine to suffer further rigorous imprisonment for two years. Accused No. 4 is also convicted for the offence punishable under Section 3 read with Section 25(1-B) (a) of the Arms Act, 1959 and sentenced to suffer simple imprisonment for two years and to pay fine of Rs.2,000/-; in default of payment of fine, to suffer further simple imprisonment for six months. APEAL. 559, 636 - 10, 153, 1380-11 - 3 - 2. Accused No. 2 -Dattaram @ Dashrath (Appellant No. 2 in Cri. Appeal No. 153/2011), accused No. 5- Ganesh (appellant in Cri. Appeal No. 559/2010) are convicted for the offence punishable under Section 395 read with section 397 of the I. P. C. and are sentenced to suffer RI for ten years; 3. Accused No. 6 – Pradeep P. Ijawa (appellant in Cri. Appeal No. 1380/2011) and accused No. 7- Justine (appellant in Cri. Appeal No. 636/2010) are convicted for the offence punishable under S. 120-B read with S. 395 of I.P.Code and sentenced to suffer R. I. for ten years and pay fine of Rs.5,000/-; in default of payment of fine to suffer further RI for one year, on both counts. 4. Accused No. 2 - Dattaram @ Dashrath, accused No. 7- Justine and accused No. 5- Ganesh are convicted for the offence punishable under Section 452 read with section 34 of the I. P. C. and are sentenced to suffer RI for five years and pay fine of Rs. 1,000/-; in default of payment of fine, to suffer further RI for six months. 5. The learned counsel appearing for the appellants contended that they do not wish to challenge the conviction on merits. It is also submitted that they would like to make their submissions in respect of sentence awarded by the trial court. It is also submitted that sentence for default in payment of fine in respect of conviction under section 3(1)(2) of the MCOC Act may be reduced. It is submitted that the sentence of further RI for two years for the said offence imposed APEAL. 559, 636 - 10, 153, 1380-11 - 4 - for default in payment of payment of fine of Rs. five lakhs is excessive and harsh. Similarly, it is submitted that so far as sentences of RI for ten years awarded to accused No. 2 Dashrath, Accused No. 5 Ganesh & accused No. 6 for the offence punishable under Section 395 read with S. 397 is also excessive. 6. It is submitted that appellants have already undergone sentence of six years, six months imprisonment and have completed almost seven years imprisonment, if the period of remission is taken into consideration. 7. On the other hand, the learned APP submitted that the trial court had rightly awarded in default sentence of RI for two years while convicting original accused No. 1, 2, 4, 5 and 6 under the MCOC Act, though it was submitted that a proposal is given by the Government for making amendment in respect of fine to be awarded for the said category. The proposals have been made for amendment for reducing the amount of fine from Rs.5 lakhs to Rs. one lakh. It is submitted that so far as sentence of ten years for the offence punishable under Section 395 read with section 397 was correctly awarded since the accused No. 2 & accused No. 6 Pradeep had inflicted injury with chopper; accused No. 5- Ganesh gave 2-3 blows of revolver on the head of PW 31 Lalji. On the other hand, it is submitted by the learned counsel for the appellants that those injuries were simple in nature. 8. After having heard the learned counsel for the appellants APEAL. 559, 636 - 10, 153, 1380-11 - 5 - and the learned APP, we are of the opinion that the in default sentence awarded by the trial court is excessive and this is a fit case where the sentence awarded by the trial court is slightly modified. 9. The evidence which is brought on record clearly discloses that injury which was inflicted with chopper, was of simple in nature and so was the injury which was caused with the but of the revolver. The appellants have already undergone almost seven years sentence of imprisonment. They have not challenged conviction on merits. Under these circumstances, therefore, the sentence awarded by the trial court is partly modified as under- (i) So far original accused No. 1 Rakesh, accused No. 2 – Dattaram @ Dashrath, accused No. 4 Mohd. Rafique, accused No. 5 – Ganesh, accused No. 6 – Pradeep, accused No. 7 – Justine Fernandes are concerned, their conviction and sentence for the offence punishable under Section 120-B, read with section 395 of I.P.C is confirmed; however, in default sentence for non payment of fine of Rs. 5,000/- is reduced from one year to six months. (ii) Secondly, so far as original accused No. 1 – Rakesh, accused No. 2 – Dashrath, accused No. 4 – Mohd. Rafique, accused No. 5 – Ganesh, accused No. 6 – Pradeep and accused No. 7 – Justine Fernandes are concerned, their conviction and sentence for the offence punishable under section 3(1)(ii) of the MCOC Act is confirmed. However, their sentence for default in APEAL. 559, 636 - 10, 153, 1380-11 - 6 - payment of fine of Rs, 5 lakhs, is reduced from two years to six months. (iii) So far as original accused No. 2 Dattaram @ Dashrath, accused No. 5 – Ganesh, accused No. 6 – Pradeep, accused No. 7 – Justine Fernandes are concerned, their conviction and sentence for the offence punishable under Section 452 read with Section 34 of I.P.C is confirmed. Similarly, conviction & sentence of original accused No. 4 Mohd. Rafique for the offence punishable under Section 3 read with section 25(1-B)(a) of the Arms Act, 1959 is confirmed. The conviction of original accused No. 2 Dattaram @ Dashrath, accused No. 5 – Ganesh and accused No. 6 – Pradeep for the offence under Section 395 read with 397 I.P.C. is confirmed; however, their sentence of RI for ten years is reduced to seven years. . All the criminal appeals are disposed of in the aforesaid terms. 10. In view of disposal of all the aforesaid appeals, Criminal Application Nos. 1248/2010, 480/2011 and 1344/11 filed in their corresponding appeals, do not survive for consideration, and are therefore, disposed of. [M. L. TAHALIYANI, J.] [ V. M. KANADE, J.]