1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRI. REVISION APPLICATION NO. 386 OF 2006 1. Shivaji @ Sanjay s/o Eknath Pawar / Mali, Aged 30 years, Occupation Nil, Resident of Manjri, Taluka Gangapur, District Aurangabad. 2. Ashok @ Narayan s/o Eknath Pawar / Mali, Aged 27 years, Occupation Nil, Resident of as above. 3. Paras s/o Shamrao Pawar, Aged 22 years, Occupation Labour, Resident of At present Pachegaon, Taluka Newasa, District Ahmednagar. 4. Suresh s/o Natha Dalvi, Aged 23 years, Occupation Labour, Resident of at present Pachegaon, Taluka Newasa, District Ahmednagar, original Resident of Lohgaon, Taluka Paithan, District Aurangabad. 5. Babu s/o Rangnath Barde, Aged 50 years, Occupation Nil, Resident of Jadhavba Colony, Chikalthana, Taluka and District Aurangabad. Applicants V E R S U S The State of Maharashtra Respondent Mr. R.V. Gore, Adv h/f Mr. G.J. Mote, Advocate for the applicants Mr. S.G. Nandedkar, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 30th September, 2010 2 ORAL JUDGMENT 1. The applicants are challenging the concurrent findings of the Courts below that they had committed an offence punishable under Section 395 of the Indian Penal Code. 2. The learned Advocate appearing for the applicants fairly conceded that he would not make submissions for setting aside of conviction of the applicants No. 1 to 4, and he said, he would seek mercy of the Court to reduce the duration of substantive sentence awarded to them. He further asserted that there is absolutely no case against the applicant No.5, and, yet the learned Judges of the Courts below erroneously held him guilty for the offence punishable under Section 195 of the Indian Penal Code. The facts leading to this case are as under : 3. On 16th September, 2004, the complainant sold his buffalo for Rs.8,600/-. He kept this cash amount at his home. Thereafter, he and his family members retired to bed. At about 11.00 p.m., 4-5 decoits attacked complainant’s house. They succeeded in entering the house. They were armed with sticks and sickles. The decoits looted the complainant and his family members of cash, a mention of which is made above, and ornaments. At 04.00 a.m., in the morning, the decoits left and the complaint was lodged. Soon after the offence was registered, the applicants were arrested. Subsequently, another accused, who had received the stolen articles, was also arrested. The prosecution could prove that the applicants No. 1 to 4 were decoits, who had entered the house of the complainant along with one more person. This fifth decoit could not be arrested, though his name is disclosed on record. The prosecution alleges that the information regarding the amount, which the complainant received on the previous day, was given by the applicant No.5 to the other accused, and due to this information, the decoit took place. But, there is no material on record to prove that it was the applicant No.5, who 3 informed the other applicants or some one else, in respect of the amount, which the complainant had on the previous day. The learned APP appearing for the State conceded to this. In view of this, the applicant No. 5 deserves acquittal. 4. As regards the applicants No. 1 to 4, there is clinching evidence, and, as said above, their conviction under Section 395 of the Indian Penal Code has not been seriously challenged. Since the date of arrest on 27th September, 2004, the applicants No. 1 to 5 are in custody. They are ordered to undergo sentence of seven years of rigorous imprisonment. In view of this, I am inclined to reduce their substantive sentence to the period which they have already undergone in custody. O R D E R 1. The Criminal Revision Application filed by applicants No.1 to 4 is partly allowed. 2. The revision filed by the applicant No. 5 is allowed and he stands acquitted of the offence punishable under Section 395 of the Indian Penal Code. He be released from Jail immediately, if not required in any other case. 3. The Judgment of conviction of the applicants No. 1 to 4, under Section 395 of the Indian Penal Code is not disturbed. But, their substantive sentence of seven years rigorous imprisonment is reduced to the period which they have already undergone in custody. ( A.V. NIRGUDE, J. ) srm/cra/386/06/30910 4