Murlidhar Mansaram Sapkale And ... vs The State Of Maharashtra
2021 Latest Caselaw 519 Bom

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                                       (1)

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

                CRIMINAL APPLICATION NO.1210 OF 2020
                                IN
                  CRIMINAL APPEAL NO.1157 OF 2019


 Murlidhar Mansaram Sapkale                               ..APPLICANT

          VERSUS

 The State of Maharashtra                                 ..RESPONDENT

 Mr N. S. Ghanekar, Advocate for applicant;
 Mr K. S. Patil, A.P.P. for respondent

                                   CORAM : RAVINDRA V. GHUGE
                                                 AND
                                           B. U. DEBADWAR, JJ.

DATE : 11th January, 2021

PER COURT:

1. By this application, the applicant/accused No.1 prays for

suspension of the substantive sentence and further prays that he should

be released on bail. The grounds formulated in four paragraphs of the

said application, in support of the prayers, are as under :

"1] That the applicant has filed Criminal Appeal before this Honourable High Court challenging the judgment and order against conviction in Sessions Case No. 11 of 2016 passed by the learned Additional Sessions Judge, Jalgaon dated 21.09.2019 for the offence punishable under section 302 of I.P.C. sentencing to suffer R.I. for life by each and to pay fine of Rs.15,000/- in default of payment of fine to suffer imprisonment for six months each. The said appeal

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is pending for hearing and admission before this Honourable High Court.

2] That the applicant was on bail throughout the trial. The applicant has not paid fine amount in the Court. That, applicant is having high hopes that his appeal would be allowed. Considering the above facts and circumstances, the applicant deserves to be released on bail.

3] That applicant is suffering from paralysis and as of now is admitted in hospital. That applicant is having firm roots in the society, he is not likely to abscond or jump on bail and are ready to abide any condition levied by this Hon'ble Court.

4] That, Applicant may be allowed to argue legal and factual aspects at the time of final hearing and craves, leave to add, amend, alter delete any of the paras of the application with permission."

2. The contention of the applicant - Murlidhar is that, he has been

behind bars ever since his arrest after the occurrence of the incident

dated 4th November, 2015. He has suffered an attack of paralysis and

he is 70 years of age.

3. We have considered the submissions of learned Counsel for the

applicant and the learned Prosecutor.

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4. In the light of the submissions of the learned Counsel for the

applicant, we have gone through the entire testimonies of eight

witnesses, out of whom, PW-5 Gajanan Kapse and PW-6 Vijay Kapse

are the eye-witnesses. PW-5 was the informant.

5. On 4th November, 2015, deceased Yogesh was assaulted by

accused Nos.1, 2 and 3, namely, Murlidhar Mansaram Sapkale,

Shantaram Murlidhar Sapkale and Ravindra Murlidhar Sapkale,

respectively. Accused Nos.4, 5 and 6 have been acquitted. The appeal

preferred by the State, challenging such acquittal has been admitted

pursuant to grant of leave.

6. The thrust of the submissions of the applicant is that, the

testimony of the Doctor, PW-4, who conducted the post-mortem upon

Yogesh, is not supported by ocular evidence. Yogesh was said to have

been assaulted by accused Nos. 1, 2 and 3. An axe is said to have been

used by Shantaram, accused No.2. The present applicant - Murlidhar

and convicted accused Ravindra are said to have used an asari - a form

of a sharp iron rod. The testimony of Dr. Patil indicates that the

injuries were caused by an axe, an asari and a knife. The following

injuries were suffered by the deceased :

"(i) contused lacerated wound over scalp, over mid line, 8 cm x 4 cm. X 2 cm. in size. The brain matter was coming out.

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(ii) Incised wound 8 cm. X 3 cm. X 3 cm. deep, fracture of temporal bone,

(iii) Incised wound 8.5 cm. x 3 cm. x 4 cm., deep.

(iv) Incised wound 2 cm. x 1 cm. x ½ over right cheek

(v) Incised wound over right side of neck, having 6 cm. x 2 cm. x 2cm.

(vi) Incised wound 3.5 cm. x 1 cm. x 1.5 cm., deep, 2 cm.

below wound No.5

(vii) Incised wound 5.5 cm. x 3 cm. x 3.5 cm., of left side of chest at T10 to T11 level;

(viii) Incised wound 4.5 cm. 3.5 cm. x 3.5 cm. On lateral aspect of abdomen."

7. On an internal examination of the deceased, the doctor found

that there were fractures of the parietal bones and temporal bones.

8. The story of the prosecution was that, while accused Nos.1, 2

and 3 were assaulting deceased Yogesh, PW-5 and PW-6 were passing

by on their motorcycle. As they heard loud shouts, they stopped and

noticed that the deceased was being assaulted by the three accused,

simultaneously. They have led evidence and have narrated the

manner, in which the three accused had assaulted Yogesh.

9. The testimony of PW-5 would indicate that Shantaram hit the

axe on the forehead of Yogesh. Murlidhar and Ravindra were

assaulting him with an iron rod. On account of the repeated blows on

his head, forehead, mouth, throat and his stomach, Yogesh fell down.

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Murlidhar and his accused mother Shantabai ran away towards

Bodhwad and Shantaram and Ravindra sped towards Jamner Road on

their motorcycle. Yogesh was carried by PW-5 and PW-6 to the

hospital, where he was declared dead on examination. PW-5

approached the Police Station on the same day and filed the first

information report. The testimony of PW-5 is corroborated by PW-6

and prima facie, we do not find any discrepancy in their narration of

what they had seen.

10. The report of the doctor, PW-4, who conducted the post-

mortem, indicates that the first wound was given by the asari and the

brain matter oozed out of the cracked open skull of Yogesh. There is

no discrepancy in the testimonies of PW-5 and PW-6 that accused

Nos.1 and 3 were using an asari to assault Yogesh, turn by turn. Both

have narrated that accused No.2 Shantaram was using an axe, by

which he was inflicting injuries on the front and the rear side of the

skull as well as on the throat of the deceased. It is, therefore,

contended that as the doctor's report does not support the testimonies

of PW-5 and PW-6, there is no evidence as to who struck the asari on

the skull, over the mid-line of the skull.

11. Prima facie, we are not impressed by the submissions of the

applicant on this count. It appears that PW-5 and PW-6, who had

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reached the spot of the crime after hearing the cries of Yogesh, may

not have been able to describe each and every blow inflicted by

accused Nos.1, 2 and 3 by using an asari, an axe and a knife,

respectively. Apparently, in quick succession, the three assailants

were inflicting the accused with blows of the axe and asari. Some

injuries have been caused by a knife. The knife, asari and the axe

were seized by the Police and PW-4 opined that injury No.1 was

caused by the asari, injury Nos.2 and 3 were caused by an axe and

other injuries were caused by knife. Be that as it may, it has been

proved beyond doubt that injury No.1 was caused by the asari, as a

consequence of which, the skull of the deceased cracked open and

brain matter had oozed out. Apparently, he would not have survived

with such an injury, when the brain matter was already come out of the

skull. The present applicant, along with accused No.3 Ravindra, had

used the asari.

12. In view of the above, we do not find that, merely because the

evidence as to who used the knife is not available, it could be said that

the present applicant has a bright chance of succeeding in this matter,

so as to earn an acquittal from this Court. Such submission stands

rejected at this stage.

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13. As such, this application is rejected.

(B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)

sjk