Rajendra Dinkar Karande vs The State Of Maharashtra
2021 Latest Caselaw 16644 Bom

Sherla V.


                                                                            902_ia.1722.2021.doc
VISHWANATH
SATYANARAYANA
SHERLA                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CRIMINAL APPELLATE SIDE
     Digitally signed by
     VISHWANATH
     SATYANARAYANA
     SHERLA
                               CRIMINAL INTERIM APPLICATION NO.1722 OF 2021
     Date: 2021.12.02                              IN
     14:33:50 +0530
                                      CRIMINAL APPEAL NO.13 OF 2021

                           Rajendra Dinkar Karande                             ... Applicant
                                     Vs.
                           State of Maharashtra                            ... Respondents



                       Mr.Vaibhav R. Gaikwad for the Applicant

                       Mr.S.S. Hulke, APP, for Respondent - State


                                                  CORAM: S.S. SHINDE &
                                                         N.J. JAMADAR, JJ.

DATED: DECEMBER 1, 2021

P.C.:

1. This Application is preferred under section 389 of the Code

of Criminal Procedure to suspend the sentence and enlarge the

applicant/original accused No.2 on bail till the disposal of the

appeal. In Sessions Case No.79 of 2018 by the impugned

judgment and order dated 16 th October, 2020 passed by the

learned Additional Sessions Judge, Kolhapur, the applicant and

co-accused Vijay have been found guilty of the offences

punishable under sections 302, 324, 323, 504 and 506 read with

902_ia.1722.2021.doc

section 34 of the Indian Penal Code (for short, 'Penal Code') for

having committed the murder of Dhanaji and also for having

assaulted Sakhubai and Namdev by dangerous weapons.

2. The learned Counsel appearing for the applicant urged that

the role attributed to the applicant is minor in nature. The applicant

had not at all assaulted the deceased. Allegedly, the applicant

assaulted Sakhubai and Namdev, while they attempted to rescue

Dhanaji, who was assaulted by accused No.1 Vijay by means of a

bamboo stick. The applicant Rajendra was on bail during the

pendency of the trial. While releasing the applicant on bail, during

the pendency of the trial, this Court had considered the distinct

roles attributed to accused No.1 Vijay and accused No.2 Rajendra.

Since the hearing and disposal of this Appeal would take

considerable time, the applicant deserves to be enlarged on bail

by suspending the sentence, submitted the learned Counsel for

the applicant.

3. The learned Counsel for the applicant took us through the

impugned judgment and the depositions of witnesses. It was

urged that the injured witnesses Sakhubai and Namdev had not

sustained any grievous injury. In the absence of the allegation that

902_ia.1722.2021.doc

the applicant Rajendra assaulted Dhanaji as well, the learned

Sessions Judge committed a manifest error in roping in the

applicant Rajendra by invoking the provisions contained in section

34 of the Penal Code. In fact, there was no prior meeting of

minds of the accused.

4. We have carefully considered the aforesaid submissions.

The learned Sessions Judge, in paragraph 32 of the impugned

judgment, has ascribed adequate reasons to indicate that the

applicant Rajendra did share common intention with accused No.1

Vijay. The said finding is based on the appraisal of the evidence

of eye witnesses Namdev, Sakhubai and Amit. The learned

Sessions Judge, in paragraph 46 of the impugned judgment,

further recorded that initially, when the first altercation took place,

accused No.1 Vijay was unarmed. However, at the time of the

core occurrence, accused No.1 Vijay as well as applicant Rajendra

came to the scene of occurrence armed with sticks. There is

evidence to indicate that while the initial blow was given by

accused No.1 Vijay to the deceased and the latter fell down, the

applicant Rajendra who was also armed, assaulted Sakhubai and

Namdev by means of bamboo stick. This simultaneous action, in

902_ia.1722.2021.doc

the opinion of the learned Sessions Judge, was in pursuance of

the prior meeting of minds of the accused. In our view, the learned

Sessions Judge has arrived at a justifiable conclusion that the

death of the deceased was caused in furtherance of the common

intention of the accused Vijay and Rajendra. It is pertinent to note

that but for the assault inflicted by the applicant on Rajendra, the

witnesses Sakhubai and Namdev would have rescued the

deceased.

5. In the aforesaid view of the matter, we are not persuaded to

agree with the submission on behalf of the applicant that since the

applicant Rajendra had not assaulted the deceased Dhanaji, he

could not have been convicted for the offence punishable under

section 302 of the Penal Code. Hence, we are not inclined to

suspend the sentence and release the applicant on bail during the

pendency of the appeal.

6. However, having regard to the facts and circumstances of

the case as well as the situation in life of the applicant Rajendra,

we grant liberty to the applicant Rajendra to move for suspension

of sentence and release on bail, in the event the appeal is not

decided within a period of two years.

902_ia.1722.2021.doc

7. With the aforesaid clarification, the application is rejected.

8. Hearing of Criminal Appeal No.13 of 2021 stands expedited.

     (N.J. JAMADAR, J.)                            (S.S. SHINDE, J.)