Bombay High Court
Yogesh @ Golu Raghunath Chaudhari vs The State Of Maharashtra on 29 October, 2021
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
913 CRIMINAL APPLICATION NO.1783 OF 2021
IN APEAL/1128/2019
YOGESH @ GOLU RAGHUNATH CHAUDHARI
VERSUS
THE STATE OF MAHARASHTRA
.....
Advocate for Applicant : Mr. V.D.Sapkal, senior counsel i/b
Mr. N. L. Choudhari
APP for Respondent-State: Mr. G.O. Wattamwar
.....
CORAM : V. K. JADHAV AND
SANDIPKUMAR. C. MORE, JJ.
DATED : 29th OCTOBER, 2021
PER COURT:-
1. Heard.
2. Pending the criminal appeal No. 1128 of 2019 preferred
against the judgment and order of conviction passed by the Sessions
Judge, Nandurbar dated 23.10.2019 in Sessions Case No. 21 of
2018, convicting thereby the applicant-accused for the offence
punishable under Section 302 of I.P.C. and sentencing him to suffer
imprisonment for life and to pay fine of Rs. 10,000/- i/d to suffer S.I.
for six months, the applicant-original accused has filed this criminal
application for suspension of substantive part of sentence and for
bail.
3. The prosecution story in brief is that on 17.4.2018 at about
9.00 p.m. a quarrel had taken place between accused person and
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deceased and in the said quarrel the applicant-accused inflicted an
injury on the chest of deceased Ravindra with the help of ice breaker.
4. Mr. Sapkal, learned senior counsel submits that though there
are so-called eye witnesses to the incident, however, the said eye
witnesses have contradicted to each other on material parts.
Learned senior counsel submits that P.W.2 Mohan Mangalsing Mali
though deposed in his examination in chief that he had witnessed the
actual incident and the applicant-accused has assaulted on the chest
of deceased Ravindra by means of ice breaker, however, after
considering the admission given by the said witness in his cross-
examination, the inference could be drawn that he is not an eye
witness to the incident. His statement was recorded belatedly for
which no explanation has been given by the Investigating Officer. In
his cross- examination, he has stated that 20/25 persons were
beating deceased Ravindra and 50 to 100 persons were gathered
there at the time of incident. He has also admitted that he cannot say
definitely as to who was holding which weapon. P.W.2 Mohan has
also stated in his cross-examination that during the discussion in
public he came to know that the accused committee murder of
deceased Ravindra.
5. Learned senior counsel submits that P.W.3 Sandip Patil is
P.S.I. Deceased Ravindra was the son of police head constable.
P.W.3 P.S.I. Sandip Patil is interested person. He is not independent
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eye witness. Learned senior counsel submits that P.W.7 Vicky
cannot be an eye witness to the incident. P.W.3 P.S.I. Patil has
deposed that after the incident, he has called auto rickshaw and
asked the driver of the auto rickshaw to take deceased to civil
hospital, Nandurbar. On the other hand P.W.7 Vicky deposed that he
took deceased Ravindra to Shinde Hospital, Nandurbar in his auto
rickshaw.
6. Learned senior counsel submits that P.W.15 Dr. Kirankumar
Wankhede, Medical Officer, who has conducted the postmortem
examination, has opined about probable cause of death as "asphyxia
due to hemothorax and left lung collapse due to sharp pointed object
injury". Learned senior counsel submits that the lungs are covered by
the ribs and in the instant case there was injury on ribs. P.W.15 Dr.
Wankhede has also admitted in his cross-examination that there was
no injury on chest. Learned senior counsel has pointed out from the
cross-examination of P.W.15 Dr. Wankhede that Dr. Wankhede has
admitted in his cross-examination that had the deceased been
treated in a well hospital, then his life could have been saved.
Learned senior counsel submits that, as admitted by Dr. Wankhede,
there was no injury on the left lung. So far as the injuries mentioned
in column No.17 are concerned, those injuries are simple in nature
as admitted by P.W.15 Dr. Wankhede. Learned senior counsel
submits that on the basis of aforesaid expert opinion, it can be safely
inferred that there was no intention to commit murder. The applicant-
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accused is in jail from the date of his arrest i.e. 18.4.2018. In view of
the same, the applicant accused deserves to be released on bail
during pendency of the appeal.
7. Learned A.P.P. has strongly resisted the application on the
ground that the prosecution case rests upon direct evidence. There
are minor contradictions and omissions. However, all three eye
witnesses have supported the prosecution case and out of them
P.W.3 is the P.S.I., who has witnessed the incident while proceeding
from that road to Sakri Naka via fish market alongwith his writer
Jayesh Gavit. He was on civil dress and his writer was also on civil
dress. Learned A.P.P. submits that there is ocular evidence and the
medical evidence is always considered as hypothetical evidence. In
view of the same, the application filed for suspension of substantive
part of sentence and for bail is required to be rejected.
8. On going through the evidence, particularly the evidence of
P.W. 2, P.W.3 and P.W.7, who are eye witness to the incident,
though we find that P.W.2 and P.W.3 have given certain admission in
their cross-examinations, which are contradictory to their own version
and also contradictory to each other, however, prima facie we find
that the evidence of P.W.3 P.S.I. Sandip Patil is trustworthy, reliable
and consistent. P.W.3 P.S.I. Sandip Patil has deposed that the
applicant-accused has assaulted on the chest of deceased Ravindra
by means of ice breaker during the quarrel. Even in the postmortem
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examination during the internal examination, P.W.15 Dr. Wankhede
in column No.20 has noted the injuries i.e. (i) normal puncture wound
on left side IInd intercostal space below clavical and (ii) Bold and
large 2 punctures on arch of aorta. P.W.15 Dr. Wankhede has also
opined that the injuries mentioned in the postmortem report are
possible by the weapon ice breaker. He was also shown the ice
breaker in the court which he has identified.
9. The incident had taken place at a crowded place. Thus,
considering the seriousness and gravity of the crime, we are not
inclined to release the applicant on bail by suspending the
substantive part of sentence. Hence, the following order:-
ORDER
I. The criminal application is hereby rejected.
II. List the criminal appeal for hearing as per its turn.
(SANDIPKUMAR. C. MORE, J.) (V. K. JADHAV, J.)
rlj/
