Bombay High Court
Vijay Motilal Rathod vs The State Of Maharashtra on 14 July, 2021
Bench: V.K. Jadhav, Shivkumar Ganpatrao Dige
1 943-CriA-488-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
943 CRIMINAL APPLICATION NO. 488 OF 2021
IN CRIMINAL APPEAL NO. 89 OF 2021
VIJAY MOTILAL RATHOD
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. Sudarshan J. Salunke
APP for Respondent-State : Mr. S.D. Ghayal
...
CORAM : V. K. JADHAV AND
S. G. DIGE, JJ.
DATE : 14th JULY, 2021
PER COURT :-
1. Pending the Criminal Appeal No. 89 of 2021, preferred against
the Judgment and Order of conviction passed by Additional Sessions
Judge, Court No. 11, Aurangabad, convicting thereby accused No. 1 -
Raju Motilal Rathod and present applicant/original accused No. 2 -
Vijay Motilal Rathod for the offence punishable under Section 302 read
with Section 34 of the Indian Penal Code (for short "IPC") and
sentenced them to suffer imprisonment for life, the applicant - original
accused No. 2 has preferred this application for suspension of
substantive part of sentence and also releasing him on bail.
2. Learned counsel for the applicant-original accused No. 2 submits
that the role attributed to the applicant is limited to the extent that he
extended beating to the deceased with fist and kick blows. The trial
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Court has convicted the applicant-original accused No. 2 with aid of
Section 34 of IPC. Learned counsel submits that during the trial, the
applicant-original accused No. 2 was on bail and he has never jumped
the condition of bail. Learned counsel submits that there is no evidence
suggesting that accused No. 2 had knowledge that accused No. 1 Raju
was carrying a knife with him and he was likely to be assaulted to
deceased with the help of knife. Learned counsel further submits that
even in the post mortem examination report, except stab injury and
incised wound, there are no other injuries to the deceased, as per
column No. 17 of the post mortem report.
3. Learned APP strongly resisted the application on the ground that
there are eye witnesses and as per ocular evidence, accused No.1 Raju
and present applicant-original accused No. 2 went towards the house
of deceased together and then incident had taken place. It has also
deposed by the eye witnesses that accused No.1 Raju called deceased
Sominath outside his house and thereafter assaulted him by using
knife. Learned APP submits that no case is made out for bail.
Application may be rejected.
4. We have carefully gone through the notes of evidence, more
particularly, the evidence of PW-1, PW-2 and PW-5 i.e. eye witnesses to
the incident. We find that the role attributed to the applicant-original
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accused No. 2 is to the extent that he extended beating to the deceased
by fist and kick blows. It also appears that on reaching to the house of
deceased, original accused No.1-Raju has called the deceased out side
his house and immediately thereafter assaulted him with help of knife.
Thus, considering the role ascribed to the present applicant- original
accused No. 2 and he was on bail during the trial, we are inclined to
release him on bail. Hence, we pass the following order.
:: ORDER ::
(i) The Criminal Application is allowed.
(ii) Pending the hearing and final disposal of the
Criminal Appeal No. 89 of 2021, substantive part of
the sentence passed by the learned Additional
Sessions Judge, Court No. 11, Aurangabad, dated
27-01-2021 in Sessions Case No. 112 of 2017 to the
extent of applicant- original accused No. 2 - Vijay
Motilal Rathod stands suspended and till then
applicant - accused No. 2 - Vijay Motilal Rathod be
released on bail on furnishing personal bond of
Rs.25,000/- (Rupees Twenty Five Thousand) with
one solvent surety of the like amount.
(iii) The Criminal Application is disposed of.
( S. G. DIGE ) ( V. K. JADHAV )
JUDGE JUDGE
mtk
