Bombay High Court
Gulab S/O Ramchandra Dongare (In ... vs State Of Mah. Through Police ... on 21 August, 2021
Bench: V.M. Deshpande, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APPA) NO. 714 OF 2019
IN
CRIMINAL APPEAL NO. 554 OF 2019
Gulab S/o. Ramchandra Dongare and others
Vs.
State of Mah. Through PSO, PS Deulgaon Raja, Dist. Buldhana
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Shri N. B. Kalwaghe, Advocate for applicants.
Shri T. A. Mirza, A.P. P. for non-applicant/State.
CORAM :- V. M. DESHPANDE AND
AMIT B. BORKAR, JJ.
DATED :- 21.08.2021
Heard Shri N. B. Kalwaghe, learned
Advocate for the applicants and Shri T. A. Mirza, learned
A.P.P. for non-applicant/State.
2. This is an application filed by the applicants/
accused nos. 1 and 2 seeking suspension of substantive
sentence under Section 389 of Code of Criminal
Procedure imposed by the judgment and order dated
05.07.2019 in Sessions Case No. 65/2017 for the offence
punishable under Section 302 read with Section 34 of the
Indian Penal Code.
3. At the outset, Shri Kalwaghe, learned
Advocate for the applicants submits that he has
instructions not to press the present application for
applicant no. 2- Sunil S/o. Gulab Dongare.
RR Jaiswal
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4. In view of the said statement, the application
is dismissed as withdrawn in respect of applicant no. 2-
Sunil S/o. Gulab Dongare.
5. Insofar as the applicant no. 1- Gulab S/o.
Ramchandra Dongare is concerned, Shri Kalwaghe,
learned Advocate for the applicants invited our attention
to the contents of the First Information Report (FIR). He
submitted that from reading of the FIR, it appears that
the role attributed to both the applicants are specific. In
the light of Clause 17 of the post-mortem report and the
medical evidence of Dr. Subhash Shingne (PW8), there is
only one injury on right temporal region of the deceased.
6. He, therefore, submitted that the said injury
is attributed to applicant no. 2- Sunil Dongare and
therefore, sentence of applicant no. 1- Gulab Dongare can
be suspended.
7. We have carefully considered the FIR and the
medical evidence of eye-witnesses- Parvati Dongare
(PW1) and Nitin Dongare (PW3). On careful perusal of
the material, it appears that in the FIR, there is specific
role attributed to the applicant no. 2- Sunil Dongare, who
assaulted on the deceased on upper part of ear. The
evidence of Parvati Dongare (PW1) and Nitin Dongare
(PW3) show that there is general allegations made
against the applicant nos. 1 and 2 that they have
assaulted the deceased on head.
RR Jaiswal
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8. Taking into consideration the medical
evidence, in the form of post-mortem report and the
evidence of Dr. Subhash Shingne (PW8), it appears that
there was only one injury caused to the deceased. Also,
the role attributed to the applicant no. 2- Sunil Dongare
and the medical evidence, we are of the opinion that case
of applicant no. 1- Gulab Dongare can be considered
favorably.
9. Hence, we are satisfied that the applicant
no. 1- Gulab Dongare has made out prima facie case for
suspension of sentence.
10. We, therefore, pass the following order:-
(i) The substantive jail sentence imposed by the
impugned judgment and order dated 05.07.2019 passed
by learned Additional Sessions Judge, Buldana in
Sessions Case No. 65/2017 is suspended qua the
applicant no. 1- Gulab Dongare.
(ii) The applicant no. 1- Gulab Dongare shall be
released on bail on furnishing P.R. bond of Rs. 5,000/-
(Rs. Five Thousand) and one surety in the like amount.
(iii) The applicant no. 1- Gulab Dongare shall be
released after completion of the formalities, if he is not
required in any other offence.
(iv) The applicant no. 1- Gulab Dongare shall
attend Police Station Deulgaon Raja, Dist. Buldana once
in a six months during pendency of this appeal.
RR Jaiswal
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(v) The application is disposed of in the above
terms.
CRIMINAL APPLICATION (APPA) NO. 713 OF 2019
By this application under Section 389 of the
Code of Criminal Procedure, the applicant/accused no. 4-
Sau. Kamal W/o. Gulab Dongare is seeking suspension of
sentence imposed by the learned Trial Judge by the
impugned judgment.
2. On perusal of the operative part of the
judgment, the learned Additional Sessions Judge,
Buldana has imposed sentence of rigorous imprisonment
for a period of 1 year by convicting the applicant under
Section 324 read with Section 34 of the Indian Penal
Code. The learned Additional Sessions Judge has already
suspended her sentence by exercising powers under
Section 389(3) of the Code of Criminal Procedure.
3. The appeal is already admitted.
4. We, therefore, pass the following order:-
(i) The substantive sentence of the
applicant/accused no. 4- Sau. Kamal W/o. Gulab
Dongare is suspended pending the appeal.
(ii) The bail furnished by the applicant/accused
no. 4- Sau. Kamal W/o. Gulab Dongare in the Trial Court
is continued during pendency of this appeal.
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(iii) The application is disposed of accordingly.
JUDGE JUDGE
RR Jaiswal
