1 REVN 305.10.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION CRIMINAL REVN. APPLN. NO. 305 OF 2010 WITH CRIMINAL APPLICATION NO. 178 OF 2010 Mr. Shantaram Vitthal Salave & Ors. ... Applicants. V/s. The State of Maharashtra. ... Respondent. Mr. C.T. Chandratre for the Applicants. Mrs. P.P. Bhosale, APP for the State. CORAM : A.R. JOSHI, J. DATED : 19th APRIL 2011. P.C. :- Perused R & P of the matter and also the evidence led before the Judicial Magistrate, First Class, Satana, 2. Heard rival arguments on this Criminal Revision Application preferred by the Applicants – Original Accused Nos.1 to 3. 3. The Applicant – Original Accused Nos.1 to 3 were convicted for the offences punishable under Section 323 r/w. Section 34 of I.P.C. and Section 341 r/w. Section 34 of I.P.C. 2 REVN 305.10.sxw and respectively sentenced to suffer imprisonment for three months and 15 days each. For the offence punishable under Section 323 fine of Rs.1,000/- was imposed and for offence punishable under Section 341 fine of Rs.100/- was imposed. Said judgment and order was passed by the J.M.F.C., Satana. It was passed on 9th October 2006. On recovery of fine amount, an amount of Rs.1,000/- was directed to be paid to the original complainant under Section 357 of Cr.P.C. Reportedly, the entire fine amount has been paid. 4. Being aggrieved by the Judgment and Order dated 9th October 2006, Criminal Appeal was preferred bearing No.36 of 2006. It was dismissed on 31st May 2010 by the Additional Sessions Judge – I, Malegaon, District Nasik and Judgment and Order of J.M.F.C. Court was upheld. Being aggrieved by both the said decisions, present Criminal Revision is filed before this Court. 5. The factual position as transpired from the complaint and recording of the evidence before the trial court can be narrated in order to ascertain the scope of the present revision and whether to intervene in the finding of the 3 REVN 305.10.sxw conviction of the Appellants – Accused for the offences punishable under Section 323 and 341 r/w. Section 34 of I.P.C. By the same impugned Judgment and Order of the J.M.F.C. Court, present Appellants – Accused were acquitted for more serious offences punishable under Section 324, 447, 504, 506 r/w. 34 of I.P.C. and also punishable under Section 135 of Bombay Police Act. However, there is no Appeal preferred by the complainant against such acquittal and as such, presently only the Revision Petition filed by the Applicants is under consideration. 6. It is almost admitted position that there are four eye witnesses to the incident of an assault on complainant PW-4. Incident took place at 11.00 a.m. on 27th November 1999 at agricultural field of the complainant. At the relevant time complainant alongwith agricultural labourers and his family members was at the field and was taking away the maize crop. His real brothers i.e. present Appellants – Accused Nos.1 to 3 appeared on the spot and obstructed the complainant from removing maize crop from out of the premises of the field. Accused No.3 gave a blow on the head of the complainant PW-4 by means of wooden handle of the axe he 4 REVN 305.10.sxw was then holding. Accused Nos.1 and 2 man handled the complainant and assaulted him with fist and kick blows and abused him in filthy language. PW-3, son of the complainant and PW-5 wife of the complainant intervened. However, without any success. The incident was also witnessed by PW-6 a labour who was present. During the recording of evidence, PW-8 Doctor was examined and he specifically detailed the injuries sustained by PW-4. Said injuries are specifically mentioned in the notes of evidence and which are as under :- “ (1) C.L.W. 3 C.M. X 1 C.M. Into scalp deep on midline of partital region, posterior part/indirection. Bleeding present. (2) Multiple lenior abrasion on right cheeck bleeding present. (3) Multiple minor abrasion on back and chest, dried blood was present. (4) Lenior abrasion 3 C.M. On dorsum of right palm dried blood present. (5) Multiple minor abrasion on nose and fore head dried blood present. 5 REVN 305.10.sxw (6) Tenderness on right testical, no colour change. (7) C.L.W. 2 C.M. X scalp deep on left occipital region, clotted blood present.” 7. It is apparent that considering the testimony of PW Nos. 3, 4 and 5 coupled with the testimony of PW-6 – labour, trial Court came to the conclusion of establishment of the case against the present Applicants – Accused Nos.1 to 3 for the of offence punishable under Section 323 and 341 r/w. Section 34 of I.P.C. However, still finding the said evidence deficient for the charges punishable under Sections 324, 447, 504, 506 r/w. Section 34 of I.P.C., the Applicants were acquitted. 8. During the course of arguments, learned Counsel for the Applicants initially submitted that the said substantive evidence of PW-3, PW-4 and PW-5 is required to be scrutinized with care and caution as they are the relatives and in fact the alleged incident of assault occurred on the dispute between the parties concerning the agricultural land. It is further argued that the evidence of PW-6, a labour may not be accepted as trustworthy as he is interested witness being under the control and authority of PW-4. 6 REVN 305.10.sxw 9. Lastly, it is submitted that alternatively, a leniency may be shown and the quantum of the punishment may be reduced to the substantive sentence already undergone. On this aspect it is submitted that the present ages of the Applicants is significant aspect and which is required to be viewed. Applicant No.1 is presently aged about 71 years whereas Applicant Nos.2 and 3 are 74years and 63 years. It is further argued that by sending the Applicants in jail to undergo the remaining part of substantive sentence of three months and 15 days, which is to run concurrently, after about 12 years will not serve the purpose on the contrary by limiting the substantive sentence to the days already undergone, a justice can be done and in that event the fine amount may also be increased. 10. Attention of this Court is drawn towards the substantive evidence of prosecution witnesses and mainly the evidence of the eye witnesses and it is submitted that the version of PW-4 – complainant is corroborated by the evidence of his son and wife so also by the evidence of his labour who was present on the spot. It is further submitted that the substantive evidence 7 REVN 305.10.sxw of PW-8 – Doctor is also corroborating the case of the complainant as to the injuries sustained by him. It is also brought to the notice of the Court that during the cross- examination of the eye witnesses, there is no specific suggestion given on behalf of the accused that they were not present on the spot. On the contrary, there is a suggestion to the eye witnesses that the complainant and his son assaulted the accused persons. By pointing out this, it is submitted on behalf of the State that it is a case in which the concurrent finding of conviction is required to be maintained. 11. Considering the rival submissions and considering the import of substantive evidence of eye witnesses corroborated by the evidence of PW-8, Medical Officer, in the opinion of this Court under the Revisional Jurisdiction, there is nothing to interfere with the findings of establishment of guilt for offences for which the Appellants – Accused were convicted. However, inspite of such conviction, the present matter can be viewed differently considering the circumstances under which the said alleged office has taken place and mainly considering that it was the assault arising out of some family dispute when admittedly there are civil suits and other 8 REVN 305.10.sxw proceedings pending between the parties. Mainly what is weighed with this Court is the present ages of the Appellants as they are in fact of advanced age and more so when they are real brothers of the original complainant. In any event, in the opinion of this Court, now sending the Appellants behind the bar to undergo the remaining part of the sentence would definitely not meet the ends of justice. In other words, in the interest of the complainant also if the fine amount is enhanced and a part of the same is directed to be given to the complainant, then it would meet the ends of justice. Hence by maintaining the conviction of the Applicants, the quantum of punishment is hereby altered to the following effect :- (i) Criminal Revision Application No. 305 of 2010 is partly allowed. (ii) Conviction of the Applicants – Accused Nos. 1 to 3 for the offences punishable under Section 323, 341 r/w. 34 of I.P.C. is maintained. However, they are sentenced to suffer the imprisonment what is already undergone. It is reported that initially on the arrest of the Applicants after the incident they were immediately released on bail. However, after the dismissal of the Appeal they were taken in 9 REVN 305.10.sxw custody on 1st June 2010 and were released on bail by the orders of this Court on 12th June 2010. As such, the already undergone period is from 1st June 2010 to 12th June 2010. 12. Fine amount already awarded by the impugned Judgment and Order of J.M.F.C., Satana is enhanced to the following effect :- (i) For the office punishable under Section 323 r/w. Section 34 of I.P.C., the fine amount is enhanced from Rs.1,000/- to Rs.5,000/- each. For the offence punishable under Section 341 r/w. Section 34 of I.P.C., the fine amount of Rs.500/- is enhanced to Rs.3,000/-. (ii) In default of payment of the enhanced fine amount, the Appellants shall undergo respective imprisonment for one month and 15 days respectively for the offences punishable under Section 323 and 341 r/w. 34 of I.P.C. If the fine amount is recovered, out of the said total fine amount of Rs.15,000/- be given to the original complainant PW-4. 13. With these directions, present Criminal Revision Application stands disposed of. 10 REVN 305.10.sxw 14. On request on behalf of the Applicants, three weeks time is given to deposit the enhanced fine amount beyond the earlier fine amount already deposited. The learned Additional Session Judge at Malegaon, District Nasik to act in compliance of these directions. 15. In view of disposal of the main Criminal Revision Application No. 305 of 2010, nothing remains in the Bail Application No. 178 of 2010 and the same is accordingly disposed of. (A.R.JOSHI, J.)