{1} Cri. Revision No.232/2007+2 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.232 OF 2007 1. Saheb S/o.Haribhau Aglawe, APPLICANTS Age-36 years, Occu-Agriculturist, (Ori. Accused No.1) 2. Kashinath S/o.Devrao Chaukale, (Ori. Accused No.2) Age-33 years, Occu-Agriculturist, 3. Waman S/o.Shankar Chaukale, (Ori. Accused No.12) Age-38 years, Occu-Agriculturist, All R/o.Village Aadgaon (Sugaon), Tq.Purna, Dist. Parbhani VERSUS State of Maharashtra RESPONDENT Through Purna Police Station, Tq.Purna, Dist.Parbhani, Dist. Parbhani ...... Mr.S.S.Deshmukh, Advocate for applicants (Appointed) Mr.S.D.Kaldate, A.P.P. for respondent/State ....... WITH CRIMINAL REVISION APPLICATION NO.178 OF 2007 1. Manik S/o.Haribhau Aglawe, APPLICANTS Age-46 years, Occu-Agriculturist, (Ori. Accused No.4) 2. Jagannath S/o.Bhujangrao Chaukate, (Ori. Accused No.5) {2} Cri. Revision No.232/2007+2 Age-35 years, Occu-Agriculturist, 3. Vaijnath S/o.Bhujangrao Chaukate, (Ori. Accused No.6) Age-40 years, Occu-Agriculturist, 4. Ankush S/o.Manikrao Aglawe, (Ori. Accused No.7) Age-21 years, Occu-Agriculturist, 5. Waman @ Balu S/o.Manik Aglawe, (Ori. Accused No.8) Age-23 years, Occu-Agriculturist, 6. Shrawan S/o.Manik Aglawe, (Ori. Accused No.9) Age-24 years, Occu-Agriculturist, 7. Prabhakarrao S/o.Bhujangrao Chaukate, (Ori. Accused No.10) Age-40 years, Occu-Agriculturist, All R/o.Adgaon (Sugaon), Tq.Purna, Dist. Parbhani. VERSUS State of Maharashtra RESPONDENT WITH CRIMINAL REVISION APPLICATION NO.196 OF 2007 Achyut S/o.Manikrao Aglawe, APPLICANT Age-25 years, Occu-Agriculturist, (Ori. Accused No.3) R/o.Adgaon (Sugaon), Tq.Purna, Dist. Parbhani VERSUS State of Maharashtra RESPONDENT ....... Mr.S.J.Salunke, Advocate for the applicants. {3} Cri. Revision No.232/2007+2 Mr.S.D.Kaldate, A.P.P. for respondent/State ....... [CORAM : A.V.POTDAR, J.] DATE : 6 th September 2011 ORAL JUDGMENT: 1. The present revision applications are directed against the common judgment and order dated 23.07.2007 passed by Sessions Judge, Parbhani in Criminal Appeals No.3/2006, 4/2006, 5/2006, 35/2006 and 56/2006. By the impugned judgment the first appellate Court has confirmed the conviction and sentence awarded to the applicants by JMFC, Purna in RCC No.107/2001. The trial court, vide judgment and order dated 30.12.2005, had convicted the applicants for an offence punishable u/s 147, 148 and 323 of the Indian Penal Code and had sentenced them to suffer RI for 3 months and to pay a fine of Rs.1000/- each with default stipulation of undergoing SI for one month. As all these revisions arise out of the common judgment, they are being disposed of by the present common judgment. 2. Such of the facts, as are necessary for the decision of the present revision applications, may briefly be stated thus - The prosecution has alleged that on 03.06.2001, when Devidas Laxman Pidge was proceeding to his field and when he {4} Cri. Revision No.232/2007+2 reached near one temple, the applicants, who were armed with sticks, iron rods and stones, attacked him and he sustained bleeding injuries on head and neck. He started shouting for help and on hearing his cries, his uncle Bhagwan and father Laxman (PW-3) rushed to the spot and tried to intervene, however, they were also assaulted by the applicants. Pursuant to the lodging of the complaint by injured Devidas, an offence at Crime No.64/2001 came to be registered against the applicants at Purna police station. The injured were referred to Government Hospital and on completion of the investigation charge sheet came to be submitted against the applicants before the JMFC, Purna and the case was numbered as RCC No.107/2001. 3. The trial court had framed charge at Exhibit-31 against the accused for an offence punishable u/ 147, 148, 323, 324, 506 r/w 149 of the Indian Penal Code and in the alternate for the offence punishable u/s 323, 324 and 506 (ii) of the Indian Penal Code. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution, in support of its case, examined in all three witnesses, including the Medical officer Dr.Dwarkadas Zawar, who had examined all the three injured and had issued medical certificates (Exhibt-56, 57 and 58), PW-2 Police Inspector Bhalerao, who had registered the offence and PW-3 Laxman, an injured eye witness and father of Devidas. It appears that during the pendency of the trial Devidas expired. It also appears that the defence of the accused was of total denial and their false implication due to {5} Cri. Revision No.232/2007+2 political rivalry of Gram Panchayat Elections. It also appears that the accused also stuck to the said defence in their examination u/s 313 of the Criminal Procedure Code. 4. The trial court, on appreciation of the evidence on record, acquitted the accused from the offence punishable u/s 324 and 506 (ii) of the Indian Penal Code, however convicted them for an offence punishable u/s 147, 148, 149 and 323 of the Indian Penal Code and sentenced them as stated above. 5. All the original accused, except accused No.11, preferred appeals before the Sessions Judge questioning their conviction and sentence. However, the first appellate court dismissed all the appeals preferred by the applicants vide common judgment and order dated 23.07.2007, which is impugned by the applicants by preferring the respective revision applications. 6. Heard learned counsel for the applicants followed by the submissions of learned APP for respondent Sate. Also perused the record and proceedings received from the trial court. This Court, in revisional jurisdiction u/s 401 r/w 397 of the Criminal Procedure Code, has a very limited scope. In the revisional jurisdiction it is not permissible for this court to re-appreciate the evidence. In the revision applications, this Court can only consider as to whether any error is committed while appreciating the evidence or whether there is perversity in the judgment of the first {6} Cri. Revision No.232/2007+2 appellate court or in the judgment of the trial court. 7. Learned counsel for the applicants urged that though Bhagwan was also injured in the said incident, however, he was not examined by the prosecution and in absence of examination of injured Bhagwan, reliance placed by both the courts below on the testimony of Medical Officer in respect of the injuries sustained by Bhagwan, is misplaced and hence their conviction cannot sustain. I am not in agreement with this submission for the simple reason that though both the courts below have concluded that other than Laxamn, Bhagwan and Devidas had also sustained injuries due to the assault by the applicants, yet no separate sentence has been awarded for the injuries sustained by every injured person. 8. It is further urged by learned counsel for the applicants that it is a case of riot and hence liability cannot be saddled on all the applicants in respect of the injures sustained by the injured. Though re-appreciation of the evidence is not permissible in the revisional jurisdiction, yet perusal of the impugned judgment clearly indicates that both the courts below have specifically observed that PW-3, injured eye witness, has very vividly given the role played by each of the applicant, including the weapon used by them. Considering the way and manner in which the evidence is given by PW-3 and is discussed by both the Courts below to conclude that the applicants were the members of the unlawful assembly with their common object to assault the the {7} Cri. Revision No.232/2007+2 three injured persons, I do not notice any force in the submission that the impugned judgment suffers from any illegality. 9. When this Court expressed inclination of non interference in the impugned judgments, learned counsel for the applicants urged that the alleged incident has taken place in the year 2001 and 10 years have been elapsed and considering the long period after the incident and in view of the fact that the applicants have not indulged in any criminal activity, they be punished with the sentence already undergone and be released. It is further urged that original accused No.3 was in jail for 16 days and original accused No.4 to 10 were in jail for 18 days and hence it is urged that considering their post incident conduct, their conviction be maintained, but they be sentenced to the period they have already undergone and the fine amount be enhanced. 10. Similar request is made on behalf of original accused No.1, 2 and 12. While opposing this submission, learned APP urged that case of original accused No.1, 2 and 12 cannot be equated with the case of other accused. As while original accused No.1, 2 and 12 were on bail and the trial was pending, they have allegedly committed one murder and hence were sentenced by the trial court, though their sentence was reduced by this Court. Hence, it is prayed that no leniency be shown at least to original accused No.1, 2 and 12. {8} Cri. Revision No.232/2007+2 11. Considering the rival submissions, I am of the considered view that there are no merits in all these three revision applications. I do not notice any error, much less perversity in the impugned judgments of conviction recorded by both the courts below. There is no room for interference in the impugned judgment, so far as conviction is concerned and hence the conviction recorded by both the courts requires to be maintained. However, the reformative theory of punishment, introduced recently, has also to be taken into consideration while deciding the present revision applications. Considering the fact that the incident has taken place way back in the year 2001 and that 10 years have already been elapsed after the incident and during these last 10 years, there are no criminal antecedents at least to the credit of accused No.3 to 10, at least no record has been put forth showing their indulgence in any other criminal activity leniency needs to be shown to original accused No.3 to 10. Learned APP is also fair enough to contend that there is no record to show that original accused No.3 to 10 have indulged in any other criminal activity during these last 10 years. In view of this, the alternative prayer made on behalf of original accused No.3 to 10 requires to be considered favourably. 12. In the premise, though the conviction of the original accused No.3 to 10 requires to be maintained, yet so far as quantum of sentence awarded to them is concerned, the same requires to be altered. {9} Cri. Revision No.232/2007+2 13. However, considering the fact that during the pendency of the trial, original accused No.1, 2 and 12 have indulged in criminal activity of murder for which they were convicted, albeit the same was reduced by this Court, they do not deserve any leniency in the sentence, as they have been awarded very meager punishment by the trial court. In the premise, criminal revision application No.232/2007 deserves to be dismissed. 14. Consequently, criminal revision application No. 232/2007 is dismissed. Applicants, original accused No.1, 2 and 12 to surrender before the Lower Court within a period of 4 weeks, failing which, Lower Court to issue arrest warrant against the applicants. 15. Criminal Revision Application Nos.178/2007 and Criminal Revision Application No.196/2007 are partly allowed. Conviction awarded by both the Lower Courts is maintained, but the sentence awarded is modified from rigorous imprisonment of 3 months and to pay fine in the sum of Rs.1,000/-, in default to suffer SI for one month, to the sentence they have already undergone and to pay fine in the sum of Rs.5,000/- each. Fine amount to be deposited within 1 month before the Lower Court, failing which the revisions will be deemed as dismiss. The fine amount already paid is to be adjusted towards the fine of Rs. {10} Cri. Revision No.232/2007+2 5000/- and out of the said fine amount an amount of Rs.32,000/- be paid to P.W. No.3 Laxman Pidge by way of compensation u/s. 357 of the Cr.P.C. Bail bonds of applicants in Cri. Rev. Appl. No. 178/2007 and Cri. Rev. Appl. No.196/2007 are cancelled. 16. The fees payable to Shri.S.S.Deshmukh, learned counsel appointed for the applicants, is quantified in the sum of Rs.3,500/-. [A.V.POTDAR, J.] drp/B11/crirevn232.07