ASHOK ABAJI GAIKWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) [Having considered in Paras 1 to 18 the evidence on record and observed that the order of conviction and sentence recorded by the Sessions Court was not sustainable and had to be set aside, the judgment proceeds - ]

(2.) Before parting with this judgment, it is necessary to recapitulate some of the features of these proceedings. The learned Sessions Judge who tried the accused, for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code was not persuaded that the action of accused Nos. 1 and 2 was such as to bring the offence under Section 302 read with Section 34 of the Indian Penal Code. He thought that at best the accused could be convicted under Section 325 read with Section 34 of the Indian Penal Code, which the learned Sessions Judge did. The State itself did not prefer an appeal against the order of acquittal passed by the learned Sessions Judge in respect of the offence under Section 302 read with Section 34 of the Indian Penal Code. No revision application was filed against the said order of acquittal by the party of the complainant. Against the sentence awarded by the learned Sessions Judge for the offence under Section 325 read with Section 34 of the Indian Penal Code also, the State has not preferred an appeal, which could have been done under Section 377 of the Code. In view of this it is not possible to agree with the course adopted by Kolse -Patil J. Kolse -Patil, J. has altered the conviction recorded by the learned Sessions Judge under Section 325 read with Section 34 of the Indian Penal Code to one under Section 302 read with Section 34 of the Indian Penal Code. While doing so, Kolse -Patil, J. thought that he was allowing the revision application filed by the State when in fact there was no revision application at all by the State, as I have already mentioned above. What has been described as criminal revision application is only a notice issued by the Division Bench while admitting the appeal for enhancement of sentence. It is only for the purpose of making entries in the register of this Court that such notices for enhancement of sentence are called criminal revision applications.

(3.) That a part, even if there were a criminal revision application by the State against the order of acquittal, which could not in law be done, this Court cannot, in exercise of its revisional jurisdiction, convert an order of acquittal into one of conviction. Section 401 of the Code of Criminal Procedure is in the following terms : -