Bombay High Court
Mangalsing @ Bhausaheb Natha ... vs The State Of Maharashtra on 24 February, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
(1)
criappln-48.2022.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.48 OF 2022
IN
CRIMINAL APPEAL NO. 8 OF 2022
1. Mangalsing @ Bhausaheb Natha
Thansing Girase
2. Rajesing @ Raosaheb Thansing Girase
3. Pravin Zulalsing Girase Applicants
Versus
The State of Maharashtra Respondent
...
Mr. A.B. Girase, Advocate for the applicants.
Smt. D.S. Jape, A.P.P. for respondent - State.
...
CORAM : V.K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
DATE : 24-02-2022.
ORDER (Per Sandipkumar C. More ) :
1. This is an application fled by the applicants, who
are the original accused, for suspension of their substantive
sentence of imprisonment and their release on bail pending
hearing and fnal and fnal disposal of the criminal appeal.
Learned Sessions Judge, Nandurbar in Sessions Case
No.34/2018 by impugned judgment and order dated
16.12.2021 has convicted the applicants for the offences
criappln-48.2022.odt
punishable under Sections 302 and 323 read with Section 34
of the Indian Penal Code ("IPC" for short) and sentenced them
to suffer imprisonment for life alongwith fne of Rs. 10,000/-
each, in default to suffer rigorous imprisonment for six
months for the offence under Section 302 read with Section
34 of I.P.C. and rigorous imprisonment for one year and to
pay fne of Rs. 1,000/- each in default to suffer rigorous
imprisonment for three months for the offence under Section
323 read with Section 34 of the I.P.C.
2. Learned Counsel for the applicants submits that
the allegations against the present applicants are only in
respect of assaulting and beating the deceased Arun, who is
brother of informant Suresh Sonu Koli, with fst and kicks.
However, the said Arun died due to head injury which was
impossible by merely beating with fsts and kicks. Learned
Counsel for the applicants submits that at the time of inquest
panchnama no head injury was in fact noticed and it was
added later on by way of manipulation at the hands of
Investigating Offcer. He further submits that the
Investigating Offcer also mentioned registration number of
F.I.R. in the spot panchnama (Exh. 68) which had in fact
carried out before registration of the crime. Learned Counsel
for the applicants further pointed out that all the applicants
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were on bail during pendency of the trial, and therefore,
considering the cause of death of deceased Arun, they be
released on bail during the pendency of this appeal.
3. On the contrary, learned A.P.P. strongly opposed
the application and submits that the learned trial Court after
carefully going through the evidence on record has found the
present applicants guilty for the charges levelled against
them. Moreover, there are eye witnesses who have stated as
to how the applicants assaulted the deceased which resulted
in his death. He further submits that the medical evidence
on record also indicates that the deceased must have died
due to the beating extended by present applicants only. As
such, he prayed for dismissal of the application.
4. We have carefully gone through the impugned
judgment and notes of evidence. We also considered the
submissions of the learned Counsel for the applicants and
learned A.P.P.
5. On going through the evidence on record,
admittedly the informant Suresh i.e. PW-1 has stated that he
saw all the applicants extended beating to his brother Arun
and due to the said beating to private part of Arun, he died.
Further, there are also other eye witnesses to the incident
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namely PW-4 Gopal Ananda Koli and PW-5 Prashant Yuvraj
Koli. However, it is important to note that nobody is saying
that any dangerous weapon was used by the applicants to
extend the beating to the deceased. On the contrary,
prosecution is claiming that the deceased was beaten by the
applicants only with the help of kicks and fsts blows. On
perusal of the medical evidence on record speaking through
PW-7 Dr. Rohan Thorat, it appears that deceased Arun had
died due to head injury associated with haemoperitoneum. It
is signifcant to note that during the investigation, query was
put up to the said Medical Offcer, District Hospital,
Nandurbar vide Exh. 64 as to what was the cause of fatal
injury i.e. head injury associated with haemoperitoneum
sustained by the deceased. Thereafter the said Medical
Offcer as per Exh. 65 had given his opinion mentioning that
the aforesaid fatal head injury was possible due to hard and
blunt object or due to fall on hard surface. PW-7 i.e. the said
Medical Offcer Dr. Rohan Thorat has also deposed as per the
aforesaid opinion in his chief examination itself. He has
stated that the injuries caused to deceased could be possible
due to hard and blunt objector falling on the hard surface. It
is signifcant to note that the allegations against the present
applicants are only in respect of beating the deceased with
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the help kicks and fst blows. Therefore, there appears strong
suspicion as to whether the fatal injury to the head was
caused by such kicks and fst blows. Moreover, the
applicants were on bail during the course of trial and there
were no criminal antecedents to their credit. Considering
these aspects, we are of the opinion that the applicants can
be released on bail pending hearing and fnal disposal of the
criminal appeal. Hence, we pass the following order.
ORDER
(i) Criminal Application is hereby allowed.
(ii) Substantive sentence of imprisonment
recorded against the applicants by learned
Sessions Judge, Nandurbar in Sessions Case
No. 34/2018 under the impugned judgment
and order dated 16.12.2021, is hereby
suspended and the applicants are released
on bail on executing P.R. bond of Rs.20,000/-
each with one solvent surety each in the like
amount, during the pendency of this criminal
appeal.
(iii) Criminal Application is accordingly disposed
of
(SANDIPKUMAR C. MORE, J.) (V.K. JADHAV, J.)
VD_Dhirde
