Bhausaheb Murlidhar Jadhav vs The State Of Maharashtra
2022 Latest Caselaw 1764 Bom

                                                 18-IA-3300-2021-in-18. APEAL-1049-2021-with-IA-230-2022-in- IA-3300-2021.doc




                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                                           INTERIM APPLICATION NO. 3300 OF 2021
                                                           IN
                                             CRIMINAL APPEAL NO. 1049 OF 2021

                        Bhausaheb Murlidhar Jadhav                                               ...Applicant/
                                                                                                    Appellant
                                    Versus

                        The State Of Maharashtra                                                 ...Respondent

                                                          WITH
                                            INTERIM APPLICATION NO. 230 OF 2022
                                                           IN
                                           INTERIM APPLICATION NO. 3300 OF 2021

                        Annasaheb Balu Waghmode                                                  ... Applicant
                                                                                                  /Intervenor

                        IN THE MATTER BETWEEN :-

                        Bhausaheb Murlidhar Jadhav                                               ...Applicant
                             Versus
                        The State Of Maharashtra                                                  ...Respondent
                                                                         ....
                        Mr. Satyavrat Joshi a/w Ms. B. Vilasini i/by Mr. Jaydeep D.
                        Mane, Advocate for the Applicant/Appellant in IA 3300 of 2021.
                        Mr. Chaitnya S. Sakhare, Advocate for the Applicant in Interim
                        Application no. 230 of 2020.
                        Mr. S. H. Yadav, APP for the Respondent - State.

                                                 CORAM             :          PRAKASH D. NAIK, J.

                                                 DATE              :          22nd FEBRUARY, 2022.

                        PER COURT:

1. Interim Application No.3300 of 2021 is preferred

by the appellant in Criminal Appeal No.1049 of 2020 seeking

Digitally signed by SAJAKALI Sajakali Jamadar 1 of 7 SAJAKALI LIYAKAT LIYAKAT JAMADAR JAMADAR Date:

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suspension of sentence and grant of bail during the pendency

of appeal. Whereas Interim Application No. 230 of 2022 is

preferred by the first informant/injured /compensation party

opposing the application for suspension of sentence.

2. The applicant is convicted for offence under

Section 326 of Indian Penal Code (for short "IPC") and

sentenced to suffer rigorous imprisonment for three years

and to pay fine of Rs.2,000/-. He is also convicted for offence

under Section 506 of IPC and sentenced to suffer rigorous

imprisonment for six months and to pay fine of Rs.500/-. Both

the sentences were directed to run concurrently.

3. Learned Advocate for the applicant submitted

that the maximum sentence imposed by the trial Court vide

judgment and order dated 24th November, 2021 is for a period

of three years. The applicant was on bail during the trial. On

the date of conviction the trial Court has suspended the

sentence and directed that the applicant be released on bail to

enable him to prefer appeal before the High Court in

accordance with Section 389(3) of Cr.P.C. It is further

submitted that the applicant has good case on merits and the

judgment of the trial Court has been challenged on several

grounds.

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4. Learned APP submitted that there is sufficient

evidence to convict the applicant under Sections 326 and 506

of IPC. The injured was assaulted by using weapon.

5. Learned counsel for the intervenor in Interim

Application No. 230 of 2022 submitted that the applicant has

been acquitted for offence under Section 307 of IPC. The

evidence on record establishes the offence under Section 307

of IPC. The knowledge required to constitute an offence under

Section 307 is apparent from the evidence on record. The

trial Court has committed an error in acquitting the accused

for offence under Section 307 with observation that intention

is necessary. The evidence of injured witness and the medical

evidence clearly establishes that there is attempt to commit

murder. The victim had dodged the assault by putting his

hand forward which resulted in injury to his hand but for that

the injured would have been killed. The evidence of the

witnesses on record is sufficient to convict the applicant for

offence under Section 307 of IPC. The complainant has

challenged the acquittal of the accused for offence under

Section 307 by preferring an appeal under Section 372 of

Cr.P.C. which is pending before division bench of this Court.

It is further submitted that, on the ground that the applicant

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was on bail during the trial and sentence is of short term

applicant is not entitled to be released on bail. Reliance is

placed on the decisions of the Apex Court in the Case of

Kishori Lal V/s. Rupa and Others AIR 2005, SC 1481; Kanaka

Rekha Naik v/S. Manoj Kumar Pradhan and Anr. 2011

CRI.L.J. 1113 and Sachin Gajanan Shetye V/s. State of

Maharashtra 2011 CRI.L.J. 132. It is submitted that while

granting bail to the applicant, condition was imposed that the

applicant shall stay out of Village Kurul. However, there was

breach of the said condition and hence, FIR has been

registered against the applicant on 27th July, 2019 with

Kamati Police Station, Dist. Solapur (Rural) under Section

188 of IPC. It is submitted that the applicant had initially

preferred an application for anticipatory bail before this

Court and interim relief was granted to him. During the

pendency of interim relief, the applicant had threatened the

complainant and therefore N.C. Complaints were lodged

against him on 29th January, 2018 and 24th August, 2019.

6. In rejoinder, learned counsel for the applicant

submitted that the decisions relied upon by the learned

counsel for the intervenor are not applicable in this case. The

accused therein was convicted for serious offence. The

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applicant has been convicted for offence under Sections 326

and 506 of IPC. Fine imposed by the trial Court has been

deposited. The applicant was on bail during the trial. He has

undergone sentence of about eight months. It is further

submitted that Section 188 of IPC would not be applicable for

alleged committing the breach of order of the Court. At the

most prosecution could preferred application for cancellation

of bail which is not done. Section 188 of IPC is applicable for

disobedience to order promulgated by public servant. The

appeal would not come up for hearing shortly. In the event

sentence is not suspended, appeal would become infructuous.

N.C. complaints were false.

7. Undisputedly, the applicant has been convicted for

offence under Section 326 of IPC. The sentence is of three

years. The applicant was on bail during the trial. The

sentence was suspended on the date of conviction. The

medical evidence discloses that the injury was caused to

hand. Whether the offence under Section 307 is attracted

would be subject matter of appeal preferred by the

complainant at appropriate stage. Considering these

circumstances, case for suspension of sentence is made out.

8. Hence, I pass the following order:

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ORDER

i. Interim Application No. 3300 of 2021 is allowed;

ii. During the pendency of Criminal Appeal No.1049

of 2021, the sentence of imprisonment imposed vide

Judgment and order dated 24th November, 2021 passed

by learned Additional Sessions Judge, Solapur in

Sessions Case No.88 of 2018 is suspended and the

applicant is directed to be released on bail on executing

P.R. Bond in the sum of Rs.25,000/- with one or more

sureties in the like amount;

iii. The applicant is permitted to furnish cash bail in

the sum of Rs.25,000/- for a period of ten weeks in lieu of

surety.

iv. The applicant shall attend the trial Court once in

six months on first Saturday of the month till the final

disposal of the appeal;

v. In the event, there are two consecutive default in

attending the trial Court, the said fact may be brought to

the notice of this Court and in such eventuality, the

prosecution will be at liberty to prefer an application for

cancellation of bail;

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vi. The applicant shall stay out of Village Kurul till

further orders;

vii. Interim Application Nos. 3300 of 2021 and 230 of

2022 are disposed off accordingly.

                                                    (PRAKASH D. NAIK, J.)




Sajakali Jamadar                             7 of 7