Shankar Chandrakant Malusare vs The State Of Maharashtra And Anr
2021 Latest Caselaw 12570 Bom

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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION


                                   INTERIM APPLICATION NO.1371 OF 2020
                                                   IN
                                     CRIMINAL APPEAL NO.457 OF 2020


                        Shankar Chandrakant Malusare             .. Applicant/ Appellant
                                 Versus
                        State of Maharashtra and Anr.            .. Respondents

                                                     ......
                        Mr.N.N. Gawankar i/b. Mr.Abhaysingh A. Shinde, Advocate for the
                        Applicant/Appellant.

                        Mr.R.M. Pethe, APP for the Respondent - State.

                        Mrs.Shaifali Ashish Dharani, Respondent No.2, present in Court.
                                                      ......

                                                      CORAM : PRAKASH D. NAIK, J.

DATED : SEPTEMBER 3, 2021.

P.C. :

This is an application for suspension of sentence and

grant of bail. Learned APP submitted that respondent no.2 is

present in Court. She submitted that she has nothing to say in

this application nor she intends to engage any advocate. She was

also informed that she can be provided legal aid by appointing Digitally

RAJESHRI signed by RAJESHRI PRAKASH advocate. She stated that she do not want legal aid.

PRAKASH    AHER
AHER       Date:
           2021.09.04
           13:04:10
           +0530
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2           The applicant was prosecuted for the ofence under

Section 302 of IPC.



3           The incident in question had occurred on 28 th August,

2017. The case of the prosecution is that the accused had

purchased coconuts from the victim. Payment in that regard was

done. Their dues to be cleared by him. The victim was insisting

for payment of dues. There was a previous meeting before the

incident dated 28th August, 2017. on the day of incident, there

was verbal exchange of words between the victim and the

applicant. At that point of time the applicant has allegedly waived

the knife to scare the victim and others, and, thereafter, he

assaulted the victim by giving blows of knife on chest and

abdomen. The victim was taken to hospital. He succumbed to

injuries on 30th August, 2017.

4 The applicant was tried before the Sessions Court.

After recording the evidence, the trial Court vide judgment and

order dated 29th August, 2020, convicted the applicant for an

ofence punishable under Section 304 (Part-Il of IPC and

sentenced to sufer imprisonment for 10 years. The trial Court

had also imposed fne of Rs.1,000/-, and directed the applicant to rpa 3/8 2 ia 1371 2020.doc

pay compensation of Rs.2,00,000/-, to heirs/dependents of the

deceased and in default to undergo simple imprisonment for six

months. The applicant is acquitted under Section 302 of IPC.

5 The compensation amount of Rs.2,00,000/-, has been

deposited by the applicant in the registry of the Court.

6 Learned Advocate Mr.Gawankar appearing for the

applicant submitted that the applicant is in custody for a period

of about four years. The appeal preferred by the appellant had

been admitted by this Court. The compensation amount of

Rs.2,00,000/-, has been deposited in this Court. The Appeal would

not come up for hearing soon. The applicant has good case on

merits. The judgment of conviction has been assailed on merits

on several grounds. In the light of the reasoning assigned by the

Court, while convicting the applicant for the ofence under

Section 304(Part-1l of IPC and in the light of the evidence in the

matter, lead by the prosecution, the alternate argument of the

applicant is that at the most the ofence under Section 304

(Part-IIl of IPC would be made out. The sentence which could be

awarded is lesser than which was imposed by the trial Court.

There are discrepancies in the evidence of witnesses which will

be urged at the time of fnal hearing of the Appeal. The judgment rpa 4/8 2 ia 1371 2020.doc

of the trial Court itself indicate that the applicant had knowledge

that death would be the result of assault, which form the

ingredient of Section 304 (Part-IIl of IPC and not Section 304

(Part-Il of IPC, which warrants an intention. The applicant do not

have criminal antecedents. He has deposited the compensation

amount of Rs.2,00,000/-, in the Court.

7 Learned APP submitted that the prosecution has been

able to prove its case. The evidence of witnesses inspire

confdence. The trial court convicted the applicant under Section

304 (Part-Il of IPC. There is suficient evidence to substantiate

the evidence. The assault has resulted in the death of the victim.

The applicant was armed with knife which shows his intention to

commit the crime. Hence, the sentence of imprisonment may not

be suspended.

8 The applicant/appellant was tried for an ofence

punishable under Section 302 of IPC. Learned Sessions Judge has

convicted him for an ofence under Section 304 (Part-Il of IPC. In

paragraph 44 of the impugned judgment and order of conviction,

the learned Judge, has referred to exception 4 of Section 300 of

IPC. The learned Judge has also referred to Section 105 of the rpa 5/8 2 ia 1371 2020.doc

Evidence Act relating to burden of proof which shifts upon the

accused in the event of invocation of general exception. In

paragraph 52, the learned Judge has observed that, the entire

evidence on record clearly shows that, there was dispute with

regards to certain amounts due or not due from accused. The

business transaction was two years old. The talk between the

parties over phone so also deceased visiting shop of accused

indicate that the relationship between the parties was not so

strained that it could lead to provide ground/motive for

committing murder. Deceased had visited alone to the shop of

accused on previous day of incident and returned unharmed. Both

came together to APMC market to ofice of informant. Thus, it

cannot be held that accused had any intention to commit murder

of deceased over the issue of non payment of dues, though the

said dispute did exist then. In paragraph 54 it is observed that

from the evidence of eye witness, it is absolutely clear that the

knife was removed after informant, PW 6, co-worker came to the

spot. The intention of the accused initially appears to be keeping

them at bay and hence, knife was waived to scare them. The facts

clearly give serious blow to the theory of prosecution to

premeditation. A premeditated person having thought of bringing

knife with determination to kill someone would not wait, but, rpa 6/8 2 ia 1371 2020.doc

would grab the frst possible opportunity. Such conduct of any

person waiting for arrival of others to create evidence against

himself is unnatural and dificult to digest. In paragraph 57,

however, it is observed that knowledge can be attributed to the

accused that causing of such bodily injuries to deceased is likely

to cause his death. Learned counsel for the applicant harped

upon these observations, and, contended that if this fndings is to

be accepted, the case would fall under Section 304 (Part-IIl of

IPC. The Appeal is yet to be heard. This is not the stage to give

any fnding on the judgment passed by the trial Court. It is

pertinent to note that acquittal under Section 302 of IPC or

conviction for a lesser ofence, is not under challenge, at the

instance of the prosecution. There are no criminal antecedents

against the applicant. The merits of the matter would be tested at

the time of fnal hearing of the Appeal. The applicant has

undergone custody for a period of about 4 years. Hence, case for

suspension of sentence and grant of bail is made out with certain

conditions.

:: O R D E R ::

(il Interim Application No.1371 of 2020, is

allowed;

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      (iil    During the pendency of Appeal No.457 of 2020,

the sentence of imprisonment awarded vide

judgment an order dated 29th August, 2020,

passed by Principal District and Sessions Judge,

Thane, in Sessions Case No.439 of 2017,

convicting the applicant/appellant, is suspended,

and, the applicant is directed to be released on

bail on executing P.R. Bond in the sum of

Rs.50,000/-, with one or more sureties in the like

amount;

(iiil Applicant is permitted to furnish provisional

cash bail in the sum of Rs.50,000/-, for a period

of eight weeks, in lieu of surety;

(ivl The applicant shall deposit the fne amount of

Rs.1,000/-, imposed by the trial Court while

executing bail bond;

(vl Applicant shall not enter into the jurisdiction of

Ghatkopar Police Station, Mumbai, till the fnal

disposal of the Appeal. He shall not approach

the complainant or the other witnesses or

relatives of the victim, in any manner;

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      (vil    Applicant shall attend trial Court to mark his

              presence, once in six months;


      (viil   Interim Application No.1371 of     2020, stands

              disposed of accordingly.




                                    (PRAKASH D. NAIK, J.)