Bombay High Court
Shivaji Dilip Zade vs The State Of Maharashtra on 8 October, 2020
Author: N.J. Jamadar
Bench: Sadhana S. Jadhav, N.J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1 OF 2019
IN
CRIMINAL APPEAL NO. 1242 OF 2019
Shivaji Dilip Zade .. Applicant/Appellant
Vs.
State of Maharashtra .... Respondent
Mr. Aniket Vagal for applicant/appellant.
Ms. P.P. Shinde, APP for respondent-State.
CORAM : SMT. SADHANA S. JADHAV &
N.J. JAMADAR, JJ.
DATE : 8th OCTOBER 2020
P.C.
1. Heard.
2. This is an application under section 389 of the Code of Criminal
Procedure, 1973 seeking suspension of substantive sentence and
enlargement on bail during the pendency of the appeal.
3. The applicant herein is the original accused No.3 in Special Case
(Atrocity) No. 14 of 2013 and is convicted for an offence punishable
Digitally
signed by
Shraddha Shraddha
K. Talekar under sections 302 read with 34 of the Indian Penal Code, 1860 ('the
K.
Date:
Talekar 2020.10.09
11:44:54
+0530 Penal Code') and sentenced to suffer rigorous imprisonment for life
and to pay fine of Rs. 5,000/-. The accused was also convicted for the
offences punishable under section 452, 427, 504, 506 read with 34 of
Shraddha Talekar PS
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the Penal Code by the learned Additional Sessions Judge, Nashik by
judgment and order dated 3rd August 2019.
4. Perused the evidenced adduced by the prosecution at the trial
with the assistance of the learned counsel for the applicant and the
learned APP.
5. At the trial, the prosecution has examined P.W.1-Kalpana
Gorakh Sonawane, the wife of the deceased Gorakh Sonawane and
P.W.4-Satish Gorakh Sonawane, son of the deceased Gorakh
Sonawane, as eye witnesses to the said incident.
6. P.W.1- Kalpana Sonawane has narrated as follows :
"...........On 20/05/2012, at about 11.00 p.m.,
the accused Sukhdeo had forcefully opened the
door of their house and had entered in their
house along with one Dhanraj and Shivaji Zhade,
i.e., the present applicant and an unknown
person. Sukhdeo was armed with an axe,
Dhanraj was armed with an iron bar whereas the
present applicant was armed with a wooden log.
According to P.W.1 Kalpana Sonawane, Sukhdeo
had given the blow of the said axe on the back
portion of head of her husband, whereas the
Shraddha Talekar PS
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present applicant had assaulted with a wooden
log on the back of her husband and Dhanraj had
assaulted the deceased on the hand and legs.
P.W.1-Kalpana Sonawane, in the cross
examination, has further conceded that when the
assailants entered in her house, there was no
communication between her and the assailants
on the day of incident. She further stated that
her husband was assaulted by axe from the sharp
side and only one blow was given by axe.
Whereas, 2 to 3 blows of wooden log were
forcefully given on the back of her husband and
5 to 6 blows were given by iron rod on the
hands of her husband.
7. The prosecution has also cross-examined P.W.4 Satish Gorakh
Sonawane, who has reiterated the narration of P.W.1-Kalpana and has
stated that Sukhdeo had assaulted his father on the head with the axe
whereas the present applicant had assaulted his father with a wooden
log on hand and legs and Dhanraj had assaulted his father with an
iron rod.
8. The learned counsel for the applicant has drawn the attention of
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this Court to column No. 17 of the post-mortem notes which are at
Exh. 62. As mentioned, in the column No.17 of the said post-mortem
notes, there are two external injuries : (1) c/w over right side of
occipital region 5 cm. x 1 cm. x 1 cm., (2) contusion 5 cm 4 cm.
Over temporal region. The injuries in column No. 17 have
corresponding injuries shown in column No.19, viz., Haemotoma of
size 5 cm. x 5 cm. on right temporal region, base of skull, i/c
bleeding present. The cause of death is 'due to hemorrhagic shock due
to head injury'.
9. It is vehemently submitted by the learned counsel for the
applicant that the injuries in the post-mortem notes would belie the
narration of the two witnesses as there are no external or internal
injuries on the other parts of the body as is alleged by P.W.1-Kalpana
Sonawane and P.W.4-Satish Sonawane.
10. As against this, the learned APP submits that in presence of
ocular evidence, the medical evidence need not be considered.
However, we disagree with the submission of the learned APP as far
as this case is concerned for the reason that the injuries in column
Nos. 17 and 19 would fortify the submission of the learned counsel
for the applicant that the present applicant had not taken an active
role in assaulting the deceased.
Shraddha Talekar PS
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11. The learned counsel for the applicant has also drawn our
attention to the order dated 3 rd December 2019 passed by this Court
by which the co-accused Bharat Chavan - accused No.4 herein was
enlarged on bail.
12. In view of the above discussion, the substantive sentence
imposed upon the applicant deserves to be suspended during the
pendency of this appeal. Hence the following order :-
O R D E R
(i) The interim application is allowed.
(ii) The substantive sentence imposed upon the applicant-Shivaji Dilip Zade is hereby suspended. The applicant be enlarged on bail on furnishing a P.R. Bond in the sum of Rs. 25,000/-, with one or two solvent sureties in the like amount to the satisfaction of the trial Court.
(iii) The applicant be enlarged on provisional cash bail for a period of six weeks within which the applicant shall Shraddha Talekar PS 6/6 2-ia-1-2019 apeal-1242-2019.doc furnish the solvent sureties to the satisfaction of the trial Court.
(iv) The applicant shall mark his presence before the Court of learned Additional Sessions Judge, Nashik once in six months, on the date assigned by the Sessions Court.
(v) Upon failure of the applicant to attend the Court, as stated above, on any two consecutive dates, the learned Additional Sessions Judge shall make a report to the High Court and the prosecution would be at liberty to seek cancellation of bail.
13. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on a digitally signed copy of this order.
[ N.J. JAMADAR, J. ] [ SMT. SADHANA S. JADHAV, J. ] Shraddha Talekar PS