Pappu Ganpat Uttekar vs The State Of Maharashtra
2021 Latest Caselaw 17728 Bom

                      1/10                                             IA-1780-2021-cri.apeal-206-2021.doc




                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION
                                            INTERIM APPLICATION NO. 1780 OF 2021
                                                             IN
         Digitally
         signed by
         SHRADDHA
SHRADDHA KAMLESH
KAMLESH TALEKAR                               CRIMINAL APPEAL NO. 206 OF 2021
TALEKAR  Date:
         2021.12.21
         18:33:55
         +0530        Pappu Ganpat Uttekar
                      Age : 31 yrs., Occ : NIL,
                      R/at : Mutha, Tal. : Mulshi,
                      Dist. : Pune.
                      (At present lodged in
                      Nashik Central Jail)                           ...Applicant
                                                               (Original Accused No.8)
                      Versus
                      1. State of Maharashtra
                      (At the instance of Paud
                      Police Station, Dist. : Pune)            ....Respondent
                                                   ****
                      Mr.Rajiv Patil, Senior Advocate i/b Mr.Prashant M. Patil for
                      applicant/appellant.
                      Mr.V.B. Konde-Deshmukh, APP for respondent-State.
                                                   ****
                                               CORAM : S. S. SHINDE &
                                                          N.J. JAMADAR, JJ.
                                               Reserved for Order on : 1st December 2021.
                                               Pronounced on         : 21st December 2021.

                      ORDER :

1. This is an application for suspension of sentence under

section 389 of the Criminal Procedure Code, 1973 ('the Code'),

during the pendency of the appeal.

3. The applicant-original accused No.8 came to be convicted

alongwith eight other accused, for the offence punishable under

Shraddha Talekar PS 2/10 IA-1780-2021-cri.apeal-206-2021.doc

section 302 read with section 34 of the Indian Penal Code, 1860

('the Penal Code') and sentenced to suffer imprisonment for life and

pay fne of Rs.5,000/- with default stipulation, for having

committed murder of Eknath Baban Kudale ('the deceased') in

furtherance of his common intention with the convicted co-

accused, by the learned Additional Sessions Judge, Pune, by

judgment and order dated 30th January 2021 in Sessions Case

No.460 of 2015.

4. Being aggrieved thereby and dissatisfed therewith, the

appellant has preferred this appeal assailing the legality, propriety

and correctness of the judgment of conviction and order of

sentence.

5. The applicant has preferred the instant application with the

assertion that the learned Additional Sessions Judge committed a

manifest error in returning the fnding of guilt qua the applicant

sans legal evidence. The fact that the testimony of Kashinath

Baban Kudale (PW-1), the frst informant, who was allegedly the

sole eye-witness to the occurrence, blisters with contradictions,

inconsistencies and improvements, was lightly brushed aside by

the learned Additional sessions Judge. The applicant, thus, has a

Shraddha Talekar PS 3/10 IA-1780-2021-cri.apeal-206-2021.doc

very strong chance to succeed in appeal. The applicant has been in

custody since 29th May 2015. It is extremely unlikely that the

appeal would be heard and decided within a reasonable time. In

the circumstances, it is necessary to suspend the sentence and

enlarge the applicant on bail during the pendency of appeal.

6. We have heard Mr. Rajiv Patil, the learned Senior Counsel for

the applicant and Mr. Konde-Deshmukh, the learned APP for the

State at length. With the assistance of the learned counsels for the

parties, we have perused the impugned judgment, depositions of

the witnesses and the material on record.

7. Mr. Rajiv Patil, the learned Senior Counsel would urge that

the learned Additional Sessions Judge was in error in not

adequately dealing with the submissions canvassed on behalf of

the applicant. First and foremost, the testimony of Kashinath

Kudale (PW-1) could not have been implicitly relied upon in the face

of the attendant circumstances which render the very presence of

Mr. Kashinath Kudale (PW-1) at the time and place of occurrence

doubtful. Secondly, even if maximum latitude is given to the

testimony of Kashinath Kudale (PW-1) and it is construed rather

generously, yet, the identity of the applicant as one of the

Shraddha Talekar PS 4/10 IA-1780-2021-cri.apeal-206-2021.doc

assailants cannot be said to have been established to the hilt.

Thirdly, the circumstantial evidence in the nature of recovery of the

sickle (koyta) pursuant to the alleged disclosure made by the

applicant is of no assistance to the prosecution as the learned

Addl. Sessions Judge recorded in clear and explicit terms that the

said weapon of offence was not sent for analysis. Thus, the nexus

between the said alleged weapon of assault and offence cannot be

said to have been established.

8. In contrast, Mr.Konde-Deshmukh, the learned APP stoutly

opposed the prayer for enlarging the applicant on bail during the

pendency of the appeal. Attention of the Court was invited to the

fact that the genesis of the occurrence is in the alleged gang

rivalry. The deceased was brutally done to death as is evident from

the fact that there were as many as 26 chop, stab and incised

wounds on the person of the deceased. In the backdrop of the

evidence on record, the learned Sessions Judge was justifed in

returning the fnding of guilt, urged, Mr.Konde-Deshmukh. It was

further submitted that having regard to the genesis of the

occurrence, the release of the appellant during the pendency of the

appeal would pose serious threat to the frst informant and rest of

the prosecution witnesses.

Shraddha Talekar PS 5/10 IA-1780-2021-cri.apeal-206-2021.doc

9. We have given our anxious consideration to the rival

submissions.

10. To begin with, the gravamen of indictment against the

applicant/accused was that the deceased was dealing in the

business of real estate. A dispute had arisen between the deceased

and Pandurang Marathe over sharing the profts from the said

business. The deceased was an accused in the alleged murder of

one Pintu Marne. Whereas Pandurang Marathe was an accused in

the alleged murder of Balu Marne. While Pandurang Marathe was

incarcerated, the accused Swapnil Bhilare was looking after the

business of Pandurang Marathe. Thus, there was a rivalry between

the deceased, on one side, and the accused, on the other side. In

the wake of the said feud, on 1st December 2014, the frst informant

had gone to Bhukum to deliver the daily newspapers. Near

Rameshwar Temple, Bhukum, he saw I-10-car of the deceased. Ten

to twelve persons were quarreling with the deceased. As he rushed

towards the said spot, co-accused Sagar Gole threw chilly powder

in the eyes of the deceased. Accused Swapnil Bhilare and Anil

Khatpe were armed with sickle. Accused Mahesh Wagh was armed

with chopper, accused Vaibhav Shelar was armed with sword,

Shraddha Talekar PS 6/10 IA-1780-2021-cri.apeal-206-2021.doc

accused Swapnil Khatpe, Ram Kedari and Hemant Godambe and

two unknown persons were armed with sharp weapons. Accused-

applicant Pappu Uttekar was armed with sickle. The armed

accused unleashed blows by means of their respective weapons.

The deceased tried to run towards the rear side of the temple. But,

the accused chased and assaulted him by their respective

weapons. After the assault, the accused fed away in an Omni Car.

The deceased was taken to Sahyadri Hospital. However, the

deceased was declared dead.

11. In the backdrop of the aforesaid nature of the accusation, the

fact that the deceased met a homicidal death could hardly be

disputed. The evidence of Dr.Amol Shinde (PW-12) and the post-

mortem report, which came to be proved in his evidence, establish

beyond the pale of controversy that the deceased had sustained as

many as 26 external injuries, most of which were chop, stab and

incised wounds, and succumbed to those injuries.

12. The endeavour on the part of the applicant to draw home the

point that Kashinath Kudale (PW-1), the frst informant, was not a

natural witness by adverting to the circumstances like the motor

cycle which the frst informant was riding and the newspapers

which the frst informant claimed that he was to deliver, were not

Shraddha Talekar PS 7/10 IA-1780-2021-cri.apeal-206-2021.doc

found at the scene of occurrence, does not merit acceptance at this

stage. The learned Additional Sessions Judge has ascribed

justifable reasons to arrive at the conclusion that the testimony of

Kashinath Kudale (PW-1) allures confdence. It is imperative to note

that the frst information report containing the core of the

prosecution case, including the place of occurrence, the identity of

the assailants, the weapons with which the assailants were armed,

the manner of assault and the circumstances in which the

assailants fed away, came to be lodged almost instantaneously.

Thus, at this juncture, we are not inclined to delve deep into the

submission that the testimony of Kashinath Kudale (PW-1) is

unworthy of sustaining the guilt of the accused.

13. Mr.Patil laid emphasis on the aspect of the identity of the

applicant as one of the assailants. To this end, attention of the

Court was invited to the manner in which Kashinath Kudale (PW-1)

fared in the cross-examination. Kashinath Kudale (PW-1) conceded

that the applicant accused Pappu Uttekar was never in his school

nor in his group. He is not residing in the area of Khaptewadi,

Bhukum. Nobody introduced the applicant to him. Till the date of

occurrence, he had no conversation with the applicant. Nor had he

met the applicant. On the strength of these admissions, an earnest

Shraddha Talekar PS 8/10 IA-1780-2021-cri.apeal-206-2021.doc

endeavour was made to demonstrate that the applicant was a

complete stranger to Kashinath Kudale (PW-1), the frst informant,

and in the absence of prior test identifcation parade, the testimony

of Kashinath Kudale (PW-1) could not have been made a legitimate

foundation to establish the identity of the applicant as one of the

assailants.

14. It is true that there was no prior test identifcation parade.

However, at this juncture, we are not persuaded to accede to the

submission on behalf of the applicant for reasons more than one.

Firstly, name of the applicant alongwith the weapon with which the

applicant was allegedly armed, does fnd mention in the frst

information report. Secondly, the evidence is required to be

appreciated in the light of the fact that, in our society, the

interactions are rather informal. Each house is not a castle. The

members of the society often know a large number of persons even

if they have had no occasion to interact or formally communicate.

Thirdly, Kashinath Kudale (PW-1) did recognize the applicant as

one of the assailants from the dock. It is trite that prior test

identifcation parade is not an immutable rule of law as it falls in

the realm of investigation. If the evidence before the Court inspires

confdence, as the learned Additional Sessions Judge concluded, in

Shraddha Talekar PS 9/10 IA-1780-2021-cri.apeal-206-2021.doc

this case, failure to hold the test identifcation parade is not fatal to

the prosecution.

15. There is another circumstance which is of signifcance.

Sanjay Nathu Khandare (PW-3), the public witness to the discovery

allegedly made by the applicant, deposed to the fact that the

applicant made disclosure statement and pursuant to the

statement made by the applicant, the weapon of assault (sickle)

was recovered. Sanjay Nathu Khandare (PW-3) identifed the

applicant from the dock as the person who had made the said

discovery. Mr.Vivek Pansare (PW-16), the investigating offcer who

effected the recovery, lent support to the claim of Sanjay Nathu

Khandare PW-3. Thus, there is circumstantial evidence which

lends support to the claim of Kashinath Kudale (PW-1).

16. It is true that the investigating offcer had not forwarded the

said sickle for analysis to Forensic Science Laboratory. However,

the aforesaid lapse in investigation does not completely erode the

factum of discovery made by the accused leading to recovery of the

weapon of assault.

17. Lastly, the genesis of the occurrence and the manner in

which the deceased was done to death cannot be lost sight of. In

the backdrop of the material on record that the occurrence in

Shraddha Talekar PS 10/10 IA-1780-2021-cri.apeal-206-2021.doc

question was, in a sense, a part of a series of reprisal killings, the

apprehension on the part of the prosecution appears to be well

founded. The manner in which the assailants unleashed blows by

deadly weapon on the deceased resulting in 26 injuries, most of

which were chop, stab and incised wounds, reveals the ferocity of

the attack and also underscores pre-meditation.

18. For the foregoing reasons, we are not persuaded to exercise

the discretion in favour of the applicant.

19. Hence, the following order :

ORDER

The application stands rejected.

The observations made hereinabove are for the purpose of

determining the prayer for suspension of sentence and they may

not be construed as an expression of opinion on merits of the

appeal.

[ N.J. JAMADAR, J. ]                             [ S.S. SHINDE, J.]




Shraddha Talekar PS