1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.470 OF 1999 Babasaheb s/o Raosaheb Deshmukh, Age: 38 years, Occ: Agri., R/o. Ghat-Shendra, Tq. Kannad, District Aurangabad. .. Applicant Versus State of Maharashtra. .. Respondent ... Mr. Joydeep Chatterji, Advocate for applicant. Mr. B.J. Sonawane, A.P.P. for respondent. ... CORAM : A.V. POTDAR, J. DATE : 9TH DECEMBER, 2009. ORAL JUDGMENT : By the present Revision Application, the revisioner applicant has challenged the order of conviction maintained in Criminal Appeal No. 105/1993, by dismissing the said appeal vide judgment and order dated 24-11-1999 by the learned Additional Sessions Judge, Aurangabad, 2 who in the said appeal, confirmed the conviction recorded by the Joint J.M.F.C. Kannad in R.C.C. No. 19/1992, wherein the revisioner applicant was held guilty for the offence punishable under Section 324 of the Indian Penal Code and was sentenced to suffer Rigorous Imprisonment for one year and also convicted the revisioner applicant for the offence punishable under Section 332 of the Indian Penal Code and was sentenced to suffer Rigorous Imprisonment for one year. This order of conviction and sentence is maintained in Criminal Appeal, which is impugned in the present Criminal Revision Application. 2. It appears that Rule was issued in this Revision Application by order dated 13-02-2001. 3. Today, when the Revision Application came up on board for final hearing, I have heard learned Counsel appearing on behalf of the Revisioner Applicant, followed by submissions of 3 learned A.P.P. appearing on behalf of the respondent - State. As this is a Revision under Section 401 of the Code of Criminal Procedure, for revisional jurisdiction of the High Court, there is very limited scope for interference in the judgment and order recorded by both the Courts below. 4. Bearing in mind this legal aspect, during the course of submissions across the Bar, the learned Counsel appearing on behalf of the revisioner applicant, drawn my attention towards the text of Section 332 of the Indian Penal Code, as according to him, so far as the material ingredient for the offence constituted under Section 324 and 332 of the Indian Penal Code, voluntarily causing grievous hurt, is the common ingredient, which can be inferred from the single act of assault at the hands of the revisioner applicant. Learned Counsel for the revisioner applicant is fair enough to say and urge that he is not disputing finding recorded 4 by both the Courts below that the complainant sustained injuries due to assault at the hands of revisioner applicant but due to that act, whether an offence punishable under Section 332 of the Indian Penal Code will be attributed, it is the question required to be decided in this Revision Application. 5. For this purpose, the learned Counsel for the revision applicant drawn my attention towards the testimony of the complainant P.W. 1 recorded before the trial Court, wherein the fact transpired that when the P.W. 1 - complainant reported on his duty, the revision applicant came there and shown bill of electricity tariff, which required to be paid by the revisioner applicant in the sum of Rs. 235/-. According to the revisioner applicant, that amount of tariff, shown in the electricity bill, which he required to pay is an excess amount. When he inquired with the complainant about excess amount charged and shown in the 5 tariff, it appears that then original complainant gave evasive answers, which resulted in the injuries sustained by the original complainant, due to assault by the revisioner applicant with a stone sustained injury on his forehead. The question arises on bare reading of the evidence given by the P.W. 1 before the trial Court, he only deposed that he was performing his duty but what was his duty and in what manner he was discharging his duty, the entire evidence of the complainant - P.W.1 claiming to be a public servant, is silent. It is rightly pointed out that mere saying a public servant on duty is not sufficient but it must be proved, what sort of public duty, the public servant was discharging. In absence of any evidence to that effect, the learned Counsel appearing on behalf of the revisioner applicant, is right in pointing out that even if the evidence of the complainant is accepted as it is, no offence is committed at the hands of the revisioner applicant, which covered under 6 Section 332 of the Indian Penal Code. 6. It is the next submission of the learned Counsel appearing for the revisioner applicant that as the concurrent finding is recorded by both the Courts below on facts that the revisioner applicant is guilty for an offence punishable under Section 324 of the Indian Penal Code. It is the submission across the Bar that the judgment of the Appellate Court was delivered on 24-11-1999. On that day, revisioner applicant was taken in custody as he surrendered before the Court of Appeal, as he was present in the Court. He was released on bail thereafter by the order of the Hon'ble High Court vide order dated 25-02-2000 but in spite of this order, it required three more days for his actual release from the custody. Thus, after the judgment and order passed by the Appellate Court in Criminal Appeal No. 105/1993, this revisioner applicant has remained in custody for period of three months till he released on bail. It is urged 7 that the sentence awarded by both the Courts below for the offence punishable under Section 324 of the Indian Penal Code be modified and reduced to the period for which, the revisioner applicant has already undergone, on two grounds, that alleged incident took place in the month of April 1992. The first Court has delivered its judgment after span of about one year six months. The First Appellate Court delivered its judgment after span of about six years thereafter and the matter has come up before this Court after span of ten years thereafter. Considering this long duration, it is prayed that the period for which, the revisioner applicant has already undergone, has remained in custody of three months, the period of sentence to be restricted to that period. Considering this situation, the learned A.P.P. conceded the factual aspects and left the matter about modification of the sentence to the discretion of this Court. 8 7. As in Revisional Jurisdiction of this Court, the concurrent findings recorded by both Courts below, cannot be modified by this Court but considering this aspect that since the incident occurred, the matter has came up on board for final hearing after gap of 17 years, wherein the applicant was convicted and sentenced to suffer Rigorous Imprisonment for one year, by both Courts below. Considering the aspect that this revision application also came on board for final hearing after gap of 10 years, even though the conviction recorded by both the Courts below is maintained. The sentence is modified from Rigorous Imprisonment for one year to the term the period of three months. The revisioner applicant was taken in custody for three months after the decision of First Appellate Court till he was released on bail by this Court. Thus, Revision Application is partly succeed. 8. Rule made absolute as indicated above, by 9 modifying sentence from one year Rigorous Imprisonment to three months Rigorous Imprisonment, for an offence punishable under Section 324 of the Indian Penal Code, which the revisioner applicant has already undergone. So far as his conviction under Section 332 of the Indian Penal Code recorded by both the Courts below, is hereby set aside. Revision Application stands disposed of accordingly. Bail bonds of the applicant stand cancelled. ( A.V. POTDAR, J.) sut/DEC09/crvn470.99