APEAL.169-08 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 169 OF 2008 Mohd. Raza Mohd. Kasim Sayyed ...Appellant Vs. The State of Maharashtra ...Respondent *** Mr. Suresh Bhosle, for the Applicant. Mrs. V. R. Bhonsale, APP for the Respondent. *** CORAM: V. M. KANADE J. DATE : SEPTEMBER 28, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the appellant and the learned APP for the respondent State. The appellant/ accused has been convicted by the trial Court for the offence punishable under S. 452 read with S. 34 of the I. P. Code and is sentenced to suffer R.I. for 3 years and to pay fine of Rs.4,500/-, in default to suffer R. I. for 9 months. 2. The prosecution case is that, original accused Nos. 1 and 2 had gone to the house of one Salim Shaha and accused No.1 had APEAL.169-08 - 2 - assaulted him with knife on his abdomen near the lungs and had also assaulted him with kick and fist blows; and accused No.2 assaulted with his knife on left palm. The charge was framed against both the accused, to which they pleaded not guilty. The prosecution has examined wife of the victim and also the victim as P.W. 2. The two accused have been identified by PW 1 and PW 2 and recovery of knife was made at the instance of both the accused. Perusal of the prosecution evidence, in my view, shows that there is sufficient evidence on record to show the involvement of appellant in commission of the said offence. Accused No.1 has not preferred any appeal against the conviction and sentence. The only role attributed to appellant/accused No.2 is that he had given blows and assaulted with knife on the left palm of the victim i.e. PW 2. In my view, there is no infirmity in the order passed by the trial Court since evidence of PW 1 and PW 2 have been corroborated by evidence of the medical officer; so also they have identified both the accused in the test identification parade, which was held by the Special Executive Magistrate. The finding recorded by the trial Court is therefore, confirmed. 3. The appellant is in jail from the date of his arrest i.e. 10th January, 2007 and he has already undergone the imprisonment of three APEAL.169-08 - 3 - years and ten months. Taking into consideration the role attributed to the present appellant, in my view, the sentence awarded by the trial Court to the appellant herein is excessive, since evidence clearly shows that there is no material on record to indicate that appellant herein had shared the intention of accused No.1, particular because there is no material on record to show that the applicant/accused No.2 was in the room at the time when accused No.1 had assaulted the victim (PW 2) with a knife and therefore, for the injury caused by accused No.1, the appellant/accused No.2 cannot be held responsible under S. 34 of the I. P. Code. That being the position, the injury caused to victim (P.W. 2) is only an injury to his palm. Under these circumstances, therefore, the sentence of imprisonment awarded to the appellant herein is reduced from three years to two years. The order directing the appellant to pay fine of Rs.4,500/-, in default to suffer R.I. for 9 months, is set aside. The appellant be released forth with, since he has already undergone more than two years sentence imprisonment, if he is not required in any other case. [ V. M. KANADE J.]