Bombay High Court
Pandurang Dharma Diwane vs The State Of Maharashtra And Ors on 17 August, 2021
Bench: Nitin Jamdar, C.V. Bhadang
15 ia 153-21 with 193-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 153 OF 2021
IN
CRIMINAL APPEAL NO. 1711 OF 2019
Balu @ Lakha Yashwant Gaikar ..Applicant
V/s.
The State of Maharashtra & Ors. ..Respondents
INTERIM APPLICATION NO. 193 OF 2021
IN
CRIMINAL APPEAL NO. 1711 OF 2019
Pandurang Dharma Diwane ..Applicant
V/s.
The State of Maharashtra & Ors. ..Respondents
----
Mr. Ashok Mundargi, Senior Advocate a/w Ameya Pitale i/b Ajit
Ram Pitale for the Applicants.
Mrs. P.P. Shinde, APP for the Respondent/State.
Mr. Parth Sanghrajka for the Respondent No.4.
----
CORAM : NITIN JAMDAR AND
C.V. BHADANG, JJ.
DATE : 17 AUGUST 2021
P.C.
. The Applicant Balu Gaikar (Accused No.1) and Pandurang
Diwane (Accused No.4) are seeking an order for suspension of
sentence and for bail.
Sneha Chavan page 1 of 6
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2. The incident in question had happened as far back as on 25
September 1987 at village Garse, Taluka Kalyan, District Thane.
According to the prosecution, the Applicant Balu Gaikar had
asked for no objection for grant of Government land and an
application was made to that effect to the Grampanchayat. The
deceased Haribhau Diwane was at the relevant Sarpanch of the
Grampanchayat. The Grampanchayat had passed a resolution
refusing to grant the land on account of which the Applicant Balu
Gaikar was annoyed. On the day of incident at about 7.15 a.m.,
the Applicants along with several others are alleged to have
assembled with sticks, sword, axe and acid bulbs etc. Sanjay, who
is the nephew of the complainant had gone to purchase tea
powder, when he was abused. Hence, Vasant, the brother of the
complainant went to fetch back Sanjay. It is alleged that all the
accused formed an unlawful assembly and assaulted the deceased
Haribhau and other injured witnesses. Haribhau died as a result
of the injuries sustained.
3. Upon investigation, in all 24 accused were sent for trial
including the present Applicants. During the course of trial, 9 out
of 24 accused died and the trial abated against them. The learned
Sessions Judge by the impugned Judgment has convicted 7 out of
15 remaining accused while 8 were acquitted. It may be
mentioned that original accused No.1 Balu Gaikar, accused No.3
Bhau Diwane, accused No.5 Laxman Diwane, accused No.10
Sneha Chavan page 2 of 6
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Suresh Gaikar, accused No.11 Chandrakant Gaikar and accused
No.17 Eknath Diwane have been convicted for the offence
punishable under Section 302 read with Section 148 and 149 of
IPC for having intentionally caused death of Haribhau Diwane.
They have also been convicted for the offence punishable under
Section 324 read with Section 149 of IPC for having cause hurt
to the injured witnesses.
4. We have heard the learned counsel for the parties. Perused
record.
5. It is submitted by Mr. Mundargi, the learned Senior
Advocate for the Applicants that 5 out of 7 accused who have
been convicted have already been released on bail by the Court.
In the submission of the learned Senior Advocate, the Applicants
would be entitled for bail on the ground of parity. It is submitted
that Applicant Balu Gaikar is alleged to have thrown an acid bulb
on the deceased while Applicant Pandurang Diwane is alleged to
have assaulted him by a sword. The learned Senior Counsel has
taken us through the evidence of injured eyewitnesses and PW-7
Dr. Pramod Satpute, who has conducted postmortem
examination on the dead body of Haribhau. He pointed out that
out of 8 injuries, the injury Nos. 1 are 5 are shown to be the acid
burns while injury No.4 is the injury which according to the
prosecution is attributable to the assault by the accused No.1 and
Sneha Chavan page 3 of 6
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accused No.4 respectively. It is submitted that none of the
injuries are stated to be the cause of death. He, therefore,
submitted that looking to the nature of the incident in which two
accused namely accused No.1 Balu Gaikar and accused No.18
Ram Kukane were also injured and the fact that the incident had
happened about 34 years back and Applicants were on bail
during the trial, they may be released on bail.
6. The learned APP submitted that the offence is serious in
which Haribhau has lost his life and 9 others were injured. She,
however, did not dispute that 5 out of 7 accused who have been
convicted have already been released on bail.
7. We have considered the circumstances and the submissions
made. Prima facie, it appears that in the incident, the deceased as
well as injured eyewitnesses as also the accused Nos.1 and 18 had
sustained injuries. The prosecution case is that the Applicant
Balu had thrown a acid bulb while Applicant Pandurang assaulted
the deceased by sword. The prosecution has examined 4 out of 9
injured witnesses namely PW-1 Narayan Diwane, PW-2 Ram
Diwane, PW-4 Vasant Diwane and PW-5 Vimal Diwane.
8. The learned Sessions Judge has acquitted 8 out of 15
accused who faced trial. The Applicant along with others have
been convicted under Section 302 and 324 of IPC with the aid of
Sneha Chavan page 4 of 6
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Section 149 IPC. The record discloses that Laxman Diwane
(accused No.5), Suresh Gaikar (accused No.10), Chandrakant
Gaikar (accused No.11) have been released by this Court on bail
by order dated 01 October 2020 in Interim Application No. 1 of
2019. Accused No.3 Bhau Diwane has been released on bail by
order dated 26 November 2020 in Interim Application No. 1331
of 2020. Lastly, accused No.17 Eknath Diwane has been released
on bail by order dated 10 December 2020 in Interim Application
No. 1372 of 2020. In our considered view, once the accused are
convicted with the aid of Section 149, the Applicants would be
entitled to parity, notwithstanding some distinction regarding
nature of the assault and the overt act attributed to the present
Applicants. The Applicants were on bail during the course of
trial.
9. Considering the over all circumstances, the following order
is passed:
ORDER
(i) The substantive sentence awarded to the Applicants
Balu Gaikar and Pandurang Diwane is hereby suspended pending
disposal of the appeal.
(ii) The Applicants Balu and Pandurang be released on
bail on furnishing a PR bond of Rs.25,000/- each with one or two
solvent sureties each in the like amount, to the satisfaction of the
learned Additional Sessions Judge, Kalyan.
Sneha Chavan page 5 of 6
15 ia 153-21 with 193-21.doc
(iii) The Applicants shall attend the Court of Additional
Sessions Judge, Kalyan, to mark their presence, once in six
months, on the date to be specified by the learned Additional
Sessions Judge, Kalyan. In the event of two consecutive defaults
in attending the Court on the dates so specified, the learned
Additional Sessions Judge shall make a report to the High Court
and thereupon the State would be at liberty to move for
cancellation of bail.
(iv) Both the applications are disposed of accordingly.
(C.V. BHADANG, J.) (NITIN JAMDAR, J.)
Sneha Chavan page 6 of 6
