Bombay High Court
Mahesh S/O. Prakash Pawar vs The State Of Maharashtra on 12 May, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
Applns-3362, 3441, 3442,3471-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3471 OF 2019
IN
CRIMINAL APPEAL NO.1043 OF 2019
Mayur @ Babuwa Suresh Kandare ... Applicant
Versus
The State of Maharashtra ... Respondent
..........
Mr. R. S. Shinde h/f Mr. N. L. Choudhari, Advocate for applicant.
Mr. A. A. Jagatkar, APP for respondent-State.
..........
WITH
CRIMINAL APPLICATION NO.3362 OF 2019
IN
CRIMINAL APPEAL NO.1004 OF 2019
Rahul @ Talya S/o Gajanan Thorat ... Applicant
Versus
The State of Maharashtra ... Respondent
..........
Mr. V. P. Raje, Advocate for applicant.
Mr. A. A. Jagatkar, APP for respondent-State.
..........
WITH
CRIMINAL APPLICATION NO.3441 OF 2019
IN
CRIMINAL APPEAL NO.1028 OF 2019
Mahesh S/o Prakash Pawar ... Applicant
Versus
The State of Maharashtra ... Respondent
(1)
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Applns-3362, 3441, 3442,3471-2019.odt
..........
Mr. K. N. Shermale, Advocate for applicant.
Mr. A. A. Jagatkar, APP for respondent-State.
..........
WITH
CRIMINAL APPLICATION NO.3442 OF 2019
IN
CRIMINAL APPEAL NO.1029 OF 2019
Santosh Chandrakant Shinde ... Applicant
Versus
The State of Maharashtra ... Respondent
...........
Mr. P. B. Pawar, Advocate for applicant.
Mr. A. A. Jagatkar, APP for respondent-State.
..........
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 21-02-2020
PRONOUNCED ON : 12-05-2020
ORDER :
All these applications have been filed by the original accused persons for suspension of sentence awarded against them by learned Additional Sessions Judge, Dhule on 29-08-2019 for the offence punishable under Sections 395, 323 read with Section 34 of Indian Penal Code in Sessions Case No.59 of 2017
2. Heard learned Advocate Mr. R. S. Shinde holding for learned Advocate Mr. N. L. Choudhari, Mr. V. P. Raje, Mr. K. N. Shermale, Mr. P. B. (2) ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:05 ::: Applns-3362, 3441, 3442,3471-2019.odt Pawar for applicants in respective applications and learned APP Mr. A. A. Jagatkar for respondents-State.
3. All the applicants were tried in the said Sessions Case and following sentence has been imposed after holding them guilty :-
"(1) Accused No.1 Rahul @ Talya Gajanan Thorat, accused No.2 Mayur @ Babuwa Suresh Kandare, accused No.3 Sagar Chaitram Bhoi, accused No.4 Mahesh Prakash Pawar and accused No.5 Santosh Chandrakant Shinde were held guilty under Section 235(2) of Code of Criminal Procedure of committing offence punishable under Sections 395 and 323 read with Section 34 of Indian Penal Code. Accused No.1 Rahul @ Talya Gajanan Thorat also held guilty of committing an offence punishable under Section 142 of Maharashtra Police Act.
(2) For commission of an offence punishable under Section 395 of the Indian Penal Code, the accused are sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.5000/- each. In dafault of payment of fine the accused shall undergo further rigorous imprisonment for one year.
(3) For commission of an offence punishable under Section 323 read with Section 34 of Indian Penal Code, the accused are sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.500/- each. In default of payment of fine the (3) ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:05 ::: Applns-3362, 3441, 3442,3471-2019.odt accused shall undergo further rigorous imprisonment for fifteen days.
(4) For commission of an offence punishable under Section 142 of Maharashtra Police Act, the accused No.1 Rahul @ Talya Gajanan Thorat is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.200/-. In default of payment of fine the accused No.1 shall undergo further rigorous imprisonment for two months."
4. It has been submitted on behalf of the appellants-applicants that the appellants-applicants have challenged the conviction in respective appeals and all the appeals have been admitted. The appeals would take time for their final disposal, however, taking into consideration the evidence that is adduced by the prosecution, a good case has been made out by them in appeals and they have every hope of success in appeals. The learned trial Judge has not appreciated the evidence properly. Only reliance has been placed on the testimony of the informant who was admittedly not knowing the present applicants prior to the date of the offence. Though the test identification parade has been held, yet, there are certain lacuna's in holding the test identification parade. The test identification parade was held in one room. The doors and the windows of the said room were closed. There is lacuna in the form that the rules framed by the High Court for conducting identification have not been adhered to. Therefore, taking into consideration (4) ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:05 ::: Applns-3362, 3441, 3442,3471-2019.odt only the testimony of the informant, the executive Magistrate who had conducted the test identification parade, the panch witness and the investigating officer, conviction has been awarded. The sentence that has been imposed is small sentence and therefore, in view of Kiran Kumar Vs. State of M. P. [(2001) 9 SCC 211], the applicants deserve to be released on bail by suspending sentence.
5. Per contra, learned APP supported the reasons given by the learned trial Judge while convicting the applicants and submitted that when a well reasoned order and judgment has been passed, leniency need not be shown. Further, all the applicants have criminal record. A chart has been given by the investigating officer which shows that as against the applicants, offences under Sections 392, 302, 395, 341, 307, etc. of Indian Penal Code were lodged and some of them are still pending. Accused Nos.1 and 4 were in jail throughout the trial, whereas accused Nos.2, 3 and 5 were on bail. Taking into consideration their criminal record, the sentence need not be suspended.
6. At the outset, the prosecution had come with the case that the informant contended that the incident had taken place at about 3.00 to 3.30 a.m. on 30-12-2016. He was to deliver chicks to Malegaon at S.K. Poultry owned by one Sudhir Patil, who has been examined as D.W.-1. He delivered (5) ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:05 ::: Applns-3362, 3441, 3442,3471-2019.odt the chicks on 29-12-2016. Thereafter, he reached near the service road situated ahead of bridge within the limits of village Varkhedi at about 3.00 a. m. He was along with a delivery boy by name Sagar P.W.-8. When he made phone call to Sudhir, Sudhir asked him to wait for about 10 minutes and accordingly, when informant-Sharad was waiting, five persons came on motorcycle and they suddenly assaulted him by means of knife. Those persons took cash amount of Rs.2000/- and odd forcibly and in the meantime, Sudhir arrived and he had caught hold of one of the assailant. Sudhir had informed the incident to Azad Nagar Police Station and thereafter, police had taken the assailant as well as informant and others to police station. He, thereafter, lodged the report.
7. Thus, it can be seen from the prosecution story that one of the assailant was caught hold at the spot itself. He has been identified as accused No.1-Rahul @ Talya Gajanan Thorat. However, P.W.-8 Sagar and Sudhir have not supported the prosecution story. The testimony of the informant is then supported by the testimony of the police person P.W.-4 Police Naik Shaikh and the executive Magistrate P.W.-6 Wagh. The learned trial Judge has held that there is no legal flaw left in holding of test identification parade. Further, the connecting piece of evidence is the recovery panchanama under Section 27 of the Indian Evidence Act. Thus, it appears that, taking into consideration all (6) ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:05 ::: Applns-3362, 3441, 3442,3471-2019.odt these aspects, the learned trial Judge has held all the accused persons guilty and convicted them.
8. Accused No.1-Rahul alias Talya Gajanan Thorat is involved in following crimes :-
Sr. No. Police Station Crime No. Sections 1. Azadnagar Police Station 36/2015 Sections 302, 396, 201 of IPC 2. Dhule City Police Station 125/2013 Section 379 of IPC 3. Dhule City Police Station 178/2012 Sections 452, 336, 427 and 323 of IPC 4. Dhule City Police Station 205/2013 Section 392 read with Section 34 of IPC 5. Dhule City Police Station 248/2013 Sections 307, 427, 323 504 and 506 of IPC 6. Dhule City Police Station 24/2014 Section 392 of IPC 7. Dhule City Police Station 63/2014 394, 341 of IPC 8. Dhule City Police Station 201/2015 Sections 295A, 427, 34 9. Dhule City Police Station 154/2013 Sections 379 of IPC 10. Dhule City Police Station 62/2015 Sections 309 of IPC 11. Dhule City Police Station 50/2013 Sections 353, 332, 427 of IPC 12. Dhule City Police Station 143/2018 Sections 353, 352, 186 of IPC 13. Dhule City Police Station 27/2018 Sections 353, 341, 386 of IPC 14. Dhule City Police Station 216/2012 Sections 395, 341 of IPC 15. Azadnagar Police Station 48/2013 Sections 454, 457, 380 of IPC 16. Dhule City Police Station 172/2016 Section 307 of IPC
Accused No.4-Mahesh Prakash Pawar is involved in following crimes :-
Sr. No. Police Station Crime No. Sections 1. Dhule City Police Station 157/2013 Section 379 of IPC 2. Azad Nagar Police Station 215/2013 Sections 307, 323, 504 of IPC 3. Dhule City Police Station 27/2018 Sections 353, 341, 386 of IPC 4. Azad Nagar Police Station 124/2016 Sections 392, 34 of IPC 5. Dhule City Police Station 112/2014 Sections 379, 34 of IPC (7) ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:05 ::: Applns-3362, 3441, 3442,3471-2019.odt
As aforesaid, accused Nos.1 and 4 were never released on bail as they are in jail throughout the trial and taking into consideration the criminal background, they are not entitled for suspension of sentence, though as per the decision in Kiran Kumar (Supra), the sentence that has been awarded is small sentence.
9. Further, as regards accused Nos.2, 3 and 5 are concerned, they are also having criminal background. Accused No.2 Mayur @ Babuwa Suresh Kandare is involved in following crimes :-
Sr. No. Police Station Crime No. Sections 1. Azad Nagar Police Station 145/2016 Section 395 of IPC 2. Dhule City Police Station 63 of 2014 Sections 395, 341 of IPC 3. Azad Nagar Police Station 118/2015 Sections 399, 402 of IPC 4. Dhule City Police Station 24/2014 Section 392 of IPC
Accused No.3-Sagar Chaitram Bhoi is involved in following crimes :-
Sr. No. Police Station Crime No. Sections 1. Dhule City Police Station 145/2016 Section 395 of IPC
Accused No.5-Santosh Chandrakant Shinde is involved in following crimes :-
Sr. No. Police Station Crime No. Sections 1. Dhule City Police Station 24/2014 Section 392 of IPC 2. Dhule City Police Station 63/2014 Sections 395, 341 of IPC 3. Azad Nagar Police Station 118/2015 Sections 399, 402 of IPC
10. Merely because the sentence that has been awarded against the accused persons is small sentence, they cannot get benefit of the (8) ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:05 ::: Applns-3362, 3441, 3442,3471-2019.odt pronouncement in Kiran Kumar's case (Supra). No doubt, P.W.-8 who was with the informant has now turned hostile, yet, the fact remains that there was no enmity between the informant and the accused persons so as to involve the accused persons in a false case. The testimony of the informant is further supported by the medical evidence i.e. P.W.-1 Dr. Siddharth Patil who had noted abrasion on the left forearm of informant and the age of the injuries was within six hours as the informant was examined at 8.00 a.m. on 30-12-2016. Further, even at this stage, perusal of the evidence of P.W.-4 Javed Shaikh the Police Naik would show that when he went to the spot after receiving the phone call, he found that 3-4 persons had caught hold of a person and on enquiry, the said person disclosed his name as Rahul @ Talya Gajanan Thorat. Definitely, it is required to be seen whether the hostility of P.W.-8 and testimony of D.W.-1 would affect the case of the prosecution or not. However, basically, taking into consideration the criminal background of the applicants, this is not a fit case where they should be released on bail during the pendency of the appeals. However, in view of the decision in Kiran Kumar (Supra), their appeals deserve to be expedited. Accordingly, the applications stand rejected. However, all the appeals are expedited.
[SMT. VIBHA KANKANWADI, J.] SCM (9) ::: Uploaded on - 12/05/2020 ::: Downloaded on - 13/05/2020 06:35:05 :::