Mahadeo Sadashiv Kokate And ... vs The State Of Maharashtra And ...
2022 Latest Caselaw 2535 Bom

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                BENCH AT AURANGABAD

     947 CRIMINAL APPLICATION NO. 2446 OF 2021
 IN CRIMINAL REVISION APPLICATION NO.140 OF 2021

          MAHADEO SADASHIV KOKATE AND OTHERS
                         VERSUS
         THE STATE OF MAHARASHTRA AND ANOTHER

Shri. Abhay Ostwal, Advocate h/f Shri. M. S. Patil, Advocate for
the applicants
Shri. G. O. Wattamwar, APP for the respondent/State

                                    CORAM : M. G. SEWLIKAR, J.
                                    DATED : 15th March, 2022

PER COURT :-

1.             Heard learned counsel Shri. Ostwal for the applicants

for some time.



2.             He submits that applicants are convicted under

Sections 147, 148, 324, 504, 506 of the Indian Penal Code. He

submits that learned Judge disbelieved recovery of weapon i.e.

stick but convicted the applicants under Section 324 of the IPC

which is clearly illegal. He submits that in order to record

conviction under Section 324 of the IPC, the weapon has to be a

sharp edged weapon or weapon for shooting, stabbing or cutting

or any instrument which is used as a weapon of offence is likely




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 to cause death. Learned Trial Court has disbelieved the recovery

of axe. He further submits that while recording conviction under

Section 504 of the IPC learned Trial Court and Appellate Court

failed to consider that specific abuses were not used. So also for

recording evidence under Section 506 of the IPC, there has to be

evidence to show that alarm was caused to the informant and

other    injured        witnesses.   Since   this   evidence         is    lacking,

conviction cannot be said to be proper.



3.             Learned counsel Shri. Ostwal submits that appeal was

posted for judgment on 26th August 2021, 3rd September, 2021,

14th September, 2021, 20th           September, 2021 and on all these

dates applicants and their advocate were present. Judgment was

finally pronounced on 27th September, 2021. Unfortunately, on

that day applicants were absent. He submits that learned Judge

was not right in passing the order of standing Non Bailable

Warrant against the applicants.



4.             From the record it appears that applicants were

present on all these dates except the date of 29 th September,

2021 on which date the judgment was pronounced. In this view



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 of the matter, I am inclined to suspend the substantive

sentence. Hence the order.

                                     ORDER

1. Substantive sentence is suspended till the disposal of

the revision.

2. Non Bailable Warrant stands stayed.

3. Applicants be released on bail on their furnishing PR

bond of Rs. 15,000/- (Rupees Fifteen Thousand only) with one

solvent surety in the like amount. Bail in the trial Court.

[M. G. SEWLIKAR, J.]

ssp