Bombay High Court
Arun Haribhau Tupe vs The State Of Maharashtra on 9 August, 2021
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
23 CRIMINAL APPLICATION NO.828 OF 2021
IN
CRIMINAL APPEAL NO. 179 OF 2021
ARUN HARIBHAU TUPE
VERSUS
THE STATE OF MAHARASHTRA
.....
Advocate for Applicant : Mr. Satej S. Jadhav
APP for Respondent : Mr. Shashibhushan P. Deshmukh
.....
CORAM : V. K. JADHAV AND
SHRIKANT D. KULKARNI, JJ.
DATED : 9th AUGUST, 2021
PER COURT:-
1. Heard.
2. Pending criminal appeal No. 179 of 2021 preferred against the
judgment and order of conviction passed by the Additional Sessions
Judge, Ahmednagar dated 04.03.2021 in Sessions Case No. 254 of
2018, convicting thereby the applicant-accused for the offences
punishable under Sections 302, 324 and 452 of I.P.C. and
sentencing him to undergo imprisonment for life and to pay fine of
Rs.10,000/- i/d R.I. for six months under Section 302 of IPC, to
undergo R.I. for three months and to pay fine of Rs.5,000/- i/d R.I. for
one month under Section 324 of IPC and to undergo R.I. for three
months and to pay fine of Rs.5,000/- i/d R.I. for one month under
Section 452 of IPC, the applicant has filed this criminal application for
suspension of substantive part of the sentence and for bail.
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3. Learned counsel for the applicant submits that the prosecution
mainly relies upon the evidence of witness P.W.4 Sanjay Painter.
Learned counsel submits that P.W.4 Sanjay Painter was the prime
suspect. However, on his statement, the applicant alone came to be
arraigned as an accused in connection with the crime and further on
the evidence of P.W.4 Sanjay Painter alone, the trial court has
convicted the applicant-accused. Learned counsel submits that the
evidence of P.W.4 Sanjay Painter is not trustworthy, reliable and
inspiring confidence. His conduct pre-incident and post-incident is
highly suspicious. Learned counsel submits that P.W.2 Padma
Keshav Jarhad (wife of deceased) has also not disclosed until
28.7.2018 that on the date of incident at 5.45 p.m. the applicant-
accused took away her husband on his motor cycle. Learned counsel
submits that her said admission in cross- examination has weaken
the prosecution case even if considered on the basis of
circumstantial evidence in the form of last seen together.
4. Learned A.P.P. submits that the evidence of P.W.4 Sanjay
Painter is cogent, reliable and trustworthy. He is the eye witness to
the incident. He is injured witness. The applicant-accused has
assaulted him and thereafter committed murder of deceased Keshav,
which he has witnessed. Learned A.P.P. submits that there is
evidence that deceased Keshav was lastly seen alive in the company
of the applicant-accused. Learned A.P.P. submits that P.W.4 Sanjay
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Painter was the prime suspect for the reason that wife of deceased,
P.W.2 Padma Jarhad, who is not an eye witness to the incident, had
disclosed his name and further, the applicant-accused had also
mislead her and the informant about involvement of witness Sanjay
Painter in the alleged commission of crime. Learned A.P.P. submits
that during trial, the applicant-accused was not on bail. His
application is liable to be rejected.
5. We have carefully gone through the prosecution evidence,
particularly the evidence of P.W.4 Sanjay Painter and P.W.1 Pramod
Jarhad. P.W.1 Pramod Jarhad, who is nephew of deceased Keshav,
went to the spot when informed about the incident by the applicant-
accused on phone. The applicant-accused had informed him that
P.W.4 Sanjay Painter has given a blow of knife to deceased Keshav.
Further, the applicant-accused took the informant P.W.1 Pramod to
the place of incident. P.W.1 Pramod, on reaching to the spot, found
the dead body of Keshav lying on the surface at downward position
having sustained bleeding injuries. At the right side of the dead body,
one stone stained with blood was also found. P.W.1 Pramod has
further deposed that the dwelling house of Sanjay Painter is 200 feet
from the spot and he was sitting outside his house. As soon as
Sanjay Painter saw them, he rushed into the home. They followed
him. When they reached there, they found him lying in an injured
condition. They inquired to him, however, he did not answer. We
need to refer the medical examination certificate of P.W.4 Sanjay
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Painter. P.W.4 Sanjay Painter was having simple injuries not on the
vital parts of his body. P.W.4 Sanjay Painter has further denied in his
cross-examination that P.W.1 Pramod and the applicant-accused
had come to his house. It is his case that the knife by which he was
assaulted, the same knife was used by the applicant-accused while
assaulting Keshav. It is thus difficult to believe that as per the
prosecution case, P.W.4 Sanjay Painter was alone on the spot of the
incident and if he had an opportunity to witness the entire incident
and if he was also assaulted by the applicant-accused for that
purpose, then, it is very unlikely on the part of the applicant-accused
to spare him by keeping him as witness to the incident of murdering
deceased Keshav on the spot. Prima facie, the pre-incident and post-
incident conduct of P.W.4 Sanjay Painter appears to be doubtful.
P.W.4 Sanjay Painter has deposed that he witnessed the incident by
sitting in the front portion of the platform of his house. However, in
cross examination, he has admitted that the tree, below which the
dead body of Keshav was lying, is behind his house.
6. P.W.2 Padma Keshav Jarhad is the wife of deceased.
According to her evidence, on 23.07.2018 at about 5.45 p.m., when
they were returning to the house from the field, the applicant-accused
came on his motor cycle and took with him the deceased Keshav for
a drive. As per P.W.2 Padma, the incident had taken place on
23.07.2018 at about 5.45 p.m. However, in para 7 of her cross-
examination, P.W.2 Padma has admitted that she had not disclosed
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to anyone uptill 28.7.2018 that the applicant-accused took away her
husband on his motor cycle.
7. So far as the recovery of knife shown to have been at the
instance of the applicant-accused is concerned, P.W.3 Dattatraya
Ghumare in para 3 of his cross-examination has admitted that on
10.08.2018, when API Rakshe called him at 10.00 am, at that time,
API Rakshe informed him that they will have to go to Chichondi for
making panchanama of seizure of knife. Even they had a talk for 15
minutes in respect of the crime and also the manner for recovering
the knife. It thus appears that A.P.I. Rakshe had knowledge about
the weapon knife and the place where it was kept. Thus, the
important aspect of disclosure by the applicant-accused for recovery
of the knife looses its significance.
8. Thus considering the entire aspect of the case, we are inclined
to release the applicant on bail by suspending the substantive part of
sentence. Hence, we proceed to pass the following order:-
ORDER
I. Criminal application is hereby allowed.
II. Pending the criminal appeal No. 179 of 2021 preferred against
the judgment and order of conviction passed by the Additional
Sessions Judge, Ahmednagar, dated 04.03.2021 in Sessions
Case No. 254 of 2018, the substantive part of the sentence is
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hereby suspended and till then the applicant Arun Haribhau
Tupe be released on bail on furnishing P.B. of Rs.25,000/-
(Twenty five thousand) with one solvent surety of the like
amount.
III. Criminal application is accordingly disposed of.
(SHRIKANT D. KULKARNI, J.) (V. K. JADHAV, J.)
rlj/
