Bombay High Court
Ajay @ Taklya Vijay Jondhale vs The State Of Maharashtra on 11 January, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.4337 OF 2022
IN
CRIMINAL APPEAL NO.1006 OF 2022
Ajay @ Taklya S/o Vijay Jondale,
Age-23 years, Occu:Nil,
R/o-Ishwar Nagar, Nanded,
Tq. and Dist-Nanded.
...APPLICANT
VERSUS
The State of Maharashtra,
Through Shivaji Nagar Police Station,
Taluka-Degloor, District-Nanded.
...RESPONDENT
...
Mr. Sanket S. Palnitkar Advocate with Mr. Chaitanya C.
Deshpande Advocate for Applicant.
Mr. R.D. Sanap, A.P.P. for Respondent.
...
CORAM: SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE : 11th JANUARY, 2023
ORDER :
1. Heard. Present Application has been filed for suspension of
substantive sentence imposed on the applicant - appellant. The
applicant along with co-accused in Criminal Appeal No.224 of
2021 and Criminal Appeal No.360 of 2021, stood prosecuted for
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various offences in Sessions Case No.139 of 2018 before the
learned Additional Sessions Judge-1, Nanded. They have been
convicted as follows:-
" 01 The accused Nos. 1-Ankush Sidharth Taru, 2-Shailesh
Piraji Kasbe, 3-Ajay @ Taklya Vijay Jondhale all resident of
Iswar Nagar, Nanded are convicted vide Section 235(2) of
Cr.P.C. for the offences punishable under Sections 302 r/w
149, 341 r/w 149, 143 r/w 149, 144 r/w 149, 147 r/w 149,
148 r/w 149 of the Indian Penal Code.
02 The accused Nos.1 to 3 for the offence punishable
under Section 302 r/w 149 of IPC are sentenced to suffer
R.I. for life each and also pay fine of Rs.1000/- each, in
default to suffer further R.I. for 03 months.
03 For the offence under Section 341 r/w 149 of IPC, all
accused Nos.1 to 3 are sentenced to suffer R.I. for one
month each and pay fine amount of Rs.200 each, in default
of payment of fine to suffer further R.I. for 10 days.
04 Accused Nos. 1 to 3 for the offence punishable under
Section 143 r/w 149 of IPC are sentenced to suffer R.I. for
06 months each and also pay fine of Rs.200/- ach, in default,
to suffer further R.I. for 10 days.
05 Accused Nos. 1 to 3 for the offence punishable under
Section 144 r/w 149 of IPC are sentenced to suffer R.I. for
06 months each and also pay fine of Rs.500/- each, in
default, to suffer further R.I. for 20 days.
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06 Accused Nos. 1 to 3 for the offence punishable under
Section 147 r/w 149 of IPC are sentenced to suffer R.I. for
06 months each and also pay fine of Rs.500/- each, in
default, to suffer further R.I. for 20 days.
07 Accused Nos. 1 to 3 for the offence punishable under
Section 148 r/w 149 of IPC are sentenced to suffer R.I. for
06 months each and also pay fine of Rs.500/- each, in
default, to suffer further R.I. for 20 days. "
2. Learned Advocate for the applicant - appellant has pointed
out that the co-equal Bench in Criminal Application No.2020 of
2022 in Criminal Appeal No.224 of 2021 (Shailesh s/o Piraji
Kasbe vs. the State of Maharashtra) and in Criminal Application
No.3786 of 2022 in Criminal Appeal No.360 of 2021 (Ankush
Siddharth Taru vs. the State of Maharashtra), has suspended the
sentence against co-accused - Shailesh s/o Piraji Kasbe and
Ankush Siddharth Taru, respectively.
3. At the time of granting application for suspension of
sentence of co-accused Shailesh Piraji Kasbe i.e. Criminal
Application No.2020 of 2022, some observations have been
made. We consider that those observations are prima facie and
cannot be said to be binding on this Court at the time of final
hearing.
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4. The main point which the present applicant - appellant
intends to harp upon is the delay in recording the statements of
eye witnesses, however, the legal position on this point is very
much clear. In the decision Goutam Joardar vs. State of West
Bengal, 2021 (12) Scale 339, it has been held by the Hon'ble
Apex Court that mere factum of delay in recording statements of
eye witnesses by itself cannot result in rejection of their
testimonies. This legal position will have to be then required to
be considered at the final stage. So also, the observations, as
regards appreciation of evidence of PW-3 and PW-9, made in
Para-5 in the order passed in Criminal Application No.2020 of
2022, dated 17th October 2022, will have to be considered as
prima facie.
5. The fact remains that the co-accused have been directed to
be released on bail by suspension of sentence and under such
circumstance, equal treatment needs to be given to the present
applicant. Though the present applicant was not released on bail
throughout the trial, taking into consideration the observations
that it will take long time to come up the appeal, the said
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discretion has been used by this Court earlier and the same
order is maintained here. Hence the following order:-
ORDER
(I) The Criminal Application is allowed.
(II) Pending the Appeal, the execution of the substantive
sentences imposed by learned Additional Sessions Judge-1,
Nanded in Sessions Case No.139 of 2018, by Judgment and
order dated 23rd February 2021 shall stand suspended so far as
the present applicant - Ajay @ Taklya Vijay Jondale, and the
present applicant be released on bail on his executing P.R. Bond
in the sum of Rs.15,000/- (Rupees Fifteen Thousand) with one
surety in the like amount.
(III) Bail before the Trial Court.
[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/JAN23
