1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.942 OF 2009 IN CRIMINAL APPEAL NO.435 OF 2003 The State of Maharashtra ...Applicant Vs. Mohd. Hussein Abdul Aziz Shaikh ...Respondent Mr.V.B.Konde-Deshmukh, A.P.P for the State Mr. Amin Solkar, Advocate for Respondent No.1 CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ. Dated : 12TH OCTOBER, 2009 P.C. : 1.Heard Mr. Konde-Deshmukh, learned A.P.P and Mr. Solkar appears for the Respondent No.1/Accused No.1. 2.The Respondent was convicted for the offence punishable under Section 302 of the Indian Penal Code as per the order of conviction and sentence passed on 29th November 2000 by the Additional Sessions Judge, Greater Mumbai. It appears that Sessions Case No.23/1999 and 807/1999 and 2 Sessions Case No.313/2000 came to be decided by a common judgment dated 29th November 2000. However the applicant was sentenced to suffer R.I only for a period of 5 years and therefore, the State of Maharashtra had filed a Criminal Appeal No.435/2003 for enhancement of sentence to life imprisonment but the said Appeal was filed belatedly i.e after 2 years and therefore, the learned A.P.P was granted time to file an application for condonation of delay, as per the order dated 15th December 2003, but no such application was filed and therefore, Criminal Appeal No.435/2003 came to be dismissed for non- prosecution. 3.In the meanwhile the Respondent suffered the sentence of 5 years and he was released. 4.It is under these circumstances this application has been filed for restoration of Criminal Appeal No.435/2003 and that too belatedly. In our order dated 30th September 2009 passed in Criminal Application No.943/2009 for condonation of delay caused in filing the said Appeal the Respondent No.1 remained present before us thereafter and Mr. Solkar appears for him. If the Respondent No.1 was convicted for the 3 offence punishable under Section 302 of the Indian Penal Code, the sentence would have been of death or life imprisonment. It was submitted by Mr. Solkar that the possibility of there being a typographical mistake in the order of conviction cannot be overruled and as per him the order of conviction was in fact under Section 304 Part-II of the Indian Penal Code. Under these circumstances the Respondent was rightly sentenced to undergo R.I for 5 years claims the learned Counsel. In our opinion, these submissions cannot be accepted and more so when they are not supported by the record. Hence, delay condoned and Criminal Appeal No. 435/2003 is hereby restored to the file. [SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.]