Bombay High Court
Sachin Nivrutti Pote vs The State Of Maharashtra on 3 March, 2022
Bench: S.S. Shinde, N. R. Borkar
cri-ia-2244-21 in cri.apeal-754-21.odt
Digitally
signed by
DINESH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DINESH SADANAND
SADANAND SHERLA
CRIMINAL APPELLATE JURISDICTION
SHERLA Date:
2022.03.03
CRIMINAL INTERIM APPLICATION NO. 2244 OF 2021
13:12:21
+0500
IN
CRIMINAL APPEAL NO. 754 OF 2021
Sachin Nivrutti Pote ] ... Applicant/Appellant
V/s.
The State of Maharashtra ]
(through Police Station Ofcer ]
Kothrud Police Station, Pune ]... Respondent
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Mr. Aabad Ponda, Sr. Advocate a/w. Mr. Shailesh Kharat a/w.
Mr. Nitin Gaware Patil for the Applicant - Sachin Pote in IA.
Mr. Nitin Gaware Patil for the Appellant- Sachin Pote in Appeal.
Mr. V.B. Konde-Deshmukh, APP for the Respondent - State.
Mr. Vikas Shivarkar for the Intevener.
----------------
CORAM : S.S. SHINDE &
N.R. BORKAR, JJ.
RESERVED ON : 21.02.2022.
PRONOUNCED ON : 03.03.2022.
ORDER (PER : N.R. BORKAR,J.)
1] The applicant has fled the appeal against the judgment
and order dated 22.07.2021 passed by the Additional
Sessions Judge and Special Judge under MCOC Act, Pune in
MCOCA Case No. 02 of 2007. By the said judgment, the trial
court convicted the applicant, who was accused No.1 before
the trial court, for the ofences punishable under sections
143, 147, 148, 149, 302 and 427 of the Indian Penal Code,
1860 ( for short "IPC") and sentenced as follows:
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(a) Rigorous Imprisonment for life for the ofence
punishable under section 302 of IPC;
(b) Rigorous Imprisonment for three years for the
ofence punishable under sections 143, 147, 148, 149 of
the IPC; and
(c) Rigorous Imprisonment for two years for the
ofence punishable under section 427 of the IPC.
2] By this application under section 389 of Code of Criminal
Procedure, 1973 (for short "Cr.P.C."), suspension of
substantive sentence during the pendency of appeal and
consequently, release of the applicant on bail is sought.
3] We have heard the learned senior counsel for the
applicant and the learned APP for the respondent/State.
4] The deceased Sandip Shankar Mohol, at the relevant
time, was the Vice President of General Kamgar Union,
Nationalist Congress Party and also Sarpanch of village
Mutha.
5] According to the prosecution, on the day of incident,
i.e., on 4.10.2006, the deceased Sandip Mohol was travelling
to Pune from his village Mutha by Scorpio car bearing
registration No. MH-12-CY-0082 and at that time Vikas M.
Mohol (PW-14), Suresh Marne (PW-24) and Prakash Karpe
(PW-30) were travelling with him.
6] According to the prosecution, at about 11.30 a.m., when
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their car was at trafc signal at Paud Phata Flyover, suddenly,
the applicant along with other co-accused came there on 3-4
motorcycles. They parked their motorcycles on the road.
According to the prosecution, the applicant was armed with
pistol and other co-accused were armed with choppers,
knives, sickles etc. According to the prosecution, the applicant
fred sie gunshots at the deceased. The said bullets hit the
deceased and he was injured. The deceased was taken to
Sanjivani Hospital, where he succumbed to his injuries.
According to the prosecution, the applicant along with other
co-accused committed the murder of the deceased on
account of previous enmity.
7] The crime was registered. During the course of
investigation, the applicant and other co-accused were found
to be members of the organized crime syndicate, therefore,
the approval was sought for invoking the provisions of the
Maharashtra Control of Organized Crime Act, 1999 (for short
"MCOC Act"). Accordingly, the approval was granted to invoke
the provisions of MCOC Act against the applicant and other
accused on 31.12.2006. On completion of investigation and
after obtaining the sanction under the provisions of MCOC Act,
charge-sheet was fled against the applicant and other co-
accused for the ofences punishable under sections 120-B,
143, 147,148,149, 302, 307, 341, 427 and 109 of the IPC and
under sections 3(25), 4 (25) of the Arms Act and under
section 37(1) read with section 135 of the Maharashtra Police
Act and under sections 3(1)(i), 3(1)(ii), 3(2), 3(4) of the MCOC
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Act. The trial court acquitted the applicant and other co-
accused of the ofences punishable under the MCOC Act.
8] The learned senior counsel for the applicant submits
that out of alleged 10 eye-witnesses, sie witnesses have not
identifed the applicant either in T.I. parade or before the
court. It is submitted that PW-11, PW-14, PW-24 and PW-30
have identifed the applicant in T.I. parade and before the
court, however, the trial court has disbelieved the testimony
of PW-14, PW-24 and PW-30. It is submitted that the trial court
has convicted the applicant only on the basis of sole
testimony of PW-11 Police Constable Haridas Khandu Shegar,
whose statement was recorded after two days of incident. It is
submitted that the admissions in the cross-eeamination of
PW-11 would show that he is got up witness.
9] As regards the recovery of pistol at the instance of the
applicant, the learned senior counsel for the applicant
submits that the trial court has disbelieved the recovery. It is
submitted that considering the above facts and
circumstances, the substantive sentence imposed by the trial
court needs to be suspended and the applicant needs to be
released on bail.
10] On the other hand, learned APP for the respondent/
State submits that PW-14, PW-24 and PW-30, who were
travelling with the deceased have identifed the applicant in
the T.I. parade, however, the trial Court wrongly discarded
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their testimony with regard to the identifcation of the
applicant. It is submitted that PW-11, who is an independent
eye-witness has identifed the applicant in the T.I. parade as
well as before the court. It is submitted that the trial court
was thus justifed in relying upon his evidence. It is further
submitted that the applicant is involved in various serious
crimes. It is submitted that considering the overall facts and
circumstances, the application needs to be rejected.
11] We have perused the evidence on record and more
particularly, the evidence of PW-11, PW-14, PW-24 and PW-30.
According to them, the present applicant fred sie gunshots at
the deceased. They all have identifed the applicant in T.I.
parade and before the court. The trial court, on appreciation
of evidence, convicted the applicant on the basis of testimony
of PW-11. The trial court has not completely discarded the
evidence of PW-14, PW-24 and PW-30. It would not be
appropriate at this stage to re-appreciate their evidence and
term them got up witnesses.
12] Considering the nature of ofence and as the applicant is
involved in other criminal cases, we are not inclined to
suspend the sentence and to release the applicant on bail.
Hence, the Interim Application is rejected.
(N.R. BORKAR, J.) (S.S. SHINDE, J.)
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