Bombay High Court
Shivaji S/O. Daulat Kharabe And ... vs The State Of Maharashtra on 7 April, 2021
Bench: V. V. Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.972 OF 2020
IN
CRIMINAL APPEAL NO.299 OF 2020
1. Shivaji s/o Daulat Kharabe
and Ors. = APPLICANTS
VERSUS
The State of Maharashtra = RESPONDENT/S
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Mr.SJ Salunke, Advocate for Applicant/s;
Mr.SB Narwade, APP for Respondent-State.
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 7th April, 2021.
PER COURT :-
1. Heard learned Advocate and learned APP
appearing for respective parties.
2. By this Criminal Application filed under
Section 389 of Cr.P.C., 1973, the applicants pray
for suspension of substantive sentences and
releasing them on bail during pendency and final
hearing of the Criminal Appeal.
3. The applicants are the original accused
Nos.1 to 3 and 5 to 19 in Special (Atrocity) Case
No.19/2012, who have been convicted by learned
Additional Sessions Judge-4/Special Judge,
Parbhani, vide judgment and order dated 25.2.2020,
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whereby the applicants have been convicted and
sentenced thus, -
a) For the offence punishable under
Sections 148, read with 149, 147, 323 of
IPC, and sentenced to suffer R.I. for
fifteen days and to pay fine of Rs.500/-
each, in default, S.I. for eight days
b) For the offence punishable under
Sections 324 read with 149 of IPC. and
sentenced to suffer R.I. for one month
and to pay fine of Rs.2,000/-, in
default, R.I. for two months.
. All the sentences are ordered to run
concurrently, and out of the fine amount,
if paid, compensation of Rs.3,000/- was
ordered to be paid to informant-Kamalbai
Jagan Chavan.
4. It is vehemently submitted on behalf of
the applicants that the the learned Special Judge
has misread and misconstrued the evidence brought
on record and erred in convicting and sentencing
the applicants. The prosecution has utterly failed
to prove the charges levelled against the
applicant/s by a cogent and reliable evidence on
record and the conviction is not sustainable in law
and facts of the case. The conviction is based on
surmises and conjectures. No reliable witnesses
were examined. The investigation was not conducted
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in a fair and impartial manner. There is no
likelihood of early hearing of the appeal. The
prosecution did not adduce any evidence to prove
the charges levelled against the applicants beyond
reasonable doubt. The applicants were on bail
during the trial and have also deposited the fine
amount within time. They are falsely implicated in
the alleged crime. They would abide by the terms
of the bail. The learned Advocate further submits
that the appeal involves other legal
points/issues, which the applicants/appellants
intend to agitate and address them at the time of
final hearing of the appeal and they have every
hope of success in the appeal. Consequently, the
applicants pray for releasing them on bail by
suspending the substantive sentences awarded by the
learned Sessions Judge on such terms and conditions
as this Court may deem fit and proper.
5. Per contra, learned APP strongly resisted
the application and supported the reasons assigned
by the learned Sessions Judge while convicting and
imposing the sentences against the applicants.
The depositions of the witnesses corroborate to
each other. The incident took place in a public
place, where the adjacent owners could see as to
what incident was going on, which indicates that
the accused have abused the informant and witnesses
in 'public view' on their caste. The testimony of
the informant has been sufficiently corroborated by
all the witnesses. The witnesses have clearly
deposed as to who caused injuries to them. The
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accused caused injuries to the witnesses owing to
previous enmity on the discord of agricultural
land. The learned Special Judge has properly
scanned and scrutinized the evidence brought on
record. It is, therefore, submitted that the
application being sans merit, deserves to be
rejected and it be rejected accordingly.
6. As it appears from the impugned judgment
and order of conviction of the learned Special
Judge, particularly the sentences, that have been
awarded against the applicants for several
offences, are the short-term sentences. In view of
the decision in the case of Kiran Kumar Vs. State
of M.P. - (2001) 9 SCC 211, benefit will have to be
extended to the applicants-appellants when they
have demonstrated that material and significant
points raised by them in the appeal are required to
be considered at the time of final hearing of the
appeal. Further, the applicants were on bail
throughout the trial, have not misused their
liberty and had also deposited the fine amount. In
this view of the matter, it can be said that a case
is definitely made out for releasing the applicants
on bail by suspending the substantive sentence
awarded against the applicants, during pendency and
final disposal of the appeal. Hence, following
order,-
ORDER
i. The Criminal Application stands
allowed.
ii. The substantive sentence imposed
on the applicants by learned Additional
Sessions Judge-4/ Special Judge,
Parbhani, vide judgment and order dated
25.2.2020, in Special (Atrocity) Case
No.19/2012, is hereby suspended till
hearing and final disposal of the appeal.
iii. The applicants - 1)Shivaji s/o
Daulat Kharabe; 2) Shankar s/o Shivaji
Kharabe; 3) Balasaheb s/o Kondiram
Kharabe; 4) Bhagwan s/o Balaji Kharabe;
5) Rajebhau s/o Haribhaui Kharabe; 6)
Dhondi @ Dhondiram Bhujangrrao Kharabe;
7) Vishnu s/o Ganesh Bodkhe; 8) Rameshwar
s/o Kishan Bodkhe; 9) Babarao s/o Daulat
Kharabe; 10) Rajebhau @ Rajaram Babarao
Kharabe; 11) Sopan s/o Haribhau Kharabe;
12) Balaji s/o Narayan Kharabe; 13) Datta
@ Dattarao Balaji Kharabe; 14) Vitthal
s/o Balaji Kharabe; 15) Pandurang s/o
Babarao Kharabe; 16) Ambadas s/o Sitaram
Bodkhe; 17) Prakash s/o Vasant Bharad;
and 18) Subhash s/o Vasant Bharad, be
released on their executing PR and SB of
Rs.15,000/ (Rupees fifteen thousand)
each.
iv. The applicants shall not commit
any criminal activity.
v. The applicants shall remain
present before the learned Special Judge
once in six months, till final hearing
and disposal of the appeal, commencing
from the date they tender bail papers
and, thereafter, the Special Judge to fix
dates for their subsequent appearances.
vi. In case of two consecutive
defaults on the part of the applicants to
remain present before the Special Court,
the Special Court to inform this Court
about the same and in that eventuality,
the prosecution would be at liberty to
file an application for cancellation of
the bail granted to the applicants.
vii. Bail before the Sessions Court.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
