Bombay High Court
Basavraj Mahadeo Dindore vs The State Of Maharashtra And Anr on 18 January, 2023
Bench: Nitin W. Sambre, R. N. Laddha
(34)-IA-3191-22 & group matters.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Digitally
signed by
BALAJI
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
INTERIM APPLICATION NO.3191 OF 2022
2023.01.20
17:47:38
+0530 IN
CRIMINAL APPEAL NO.951 OF 2022
Basavraj Mahadeo Dindore ..Applicant/Appellant
Versus
The State of Maharashtra & Anr. ..Respondents
WITH
CRIMINAL APPEAL NO.938 OF 2022
WITH
INTERIM APPLICATION NO.3125 OF 2022
Siddharam Mahadeo Dindore ..Appellant/Applicant
Versus
The State of Maharashtra & Anr. ..Respondents
WITH
CRIMINAL APPEAL NO.950 OF 2022
Bappu @ Sharnappa Shivanand Dindore ..Appellant
Versus
The State of Maharashtra & Anr. ..Respondents
WITH
CRIMINAL APPEAL NO.952 OF 2022
Shivanand Mahadeo Dindore ..Appellant
Versus
The State of Maharashtra & Anr. ..Respondents
Mr. Aniket Nikam a/w Piyush Toshnival & Ashish Satpute i/by Amit
Icham, for the Appellant/Applicant.
Smt. M. M. Deshmukh, APP for the Respondent No.1/State.
Mr. Priyal G. Sarda, for the Respondent No.2.
BGP. 1 of 4
(34)-IA-3191-22 & group matters.doc.
CORAM : NITIN W. SAMBRE &
R. N. LADDHA, JJ.
DATE : 18th JANUARY, 2023
P.C.
1. This is an application by accused No.2 seeking relief
under Sub-Section (1) of Section 389 of CrPC.
2. The case of the prosecution is, accused Nos.2 to 4 are
real brothers. Out of property dispute, accused No.1 fired at
deceased Mallikarjun, cousin brother of the applicant. The role
attributed to the applicant is that of accomplice with common
intention. The applicant was armed with sickle at the time of
commission of offence. In Sessions Case No.218 of 2017, the
Sessions Court has ordered conviction of the applicant for an
offence punishable under Section 302 r/w 34 of IPC and sentenced
him to life imprisonment and fine.
3. Counsel for the applicant Mr. Aniket Nikam informs that
the accused has already deposited the amount of fine.
4. While impressing upon the Court for grant of relief, he
would invite attention to the testimony of eye witnesses, namely
PW-2 and PW-5 who are real brothers of deceased. According to
him, both these witnesses have stated that applicant was armed
with sickle. He would urge that the sickle was recovered from
stream which is open place and as such recovery is under doubt.
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(34)-IA-3191-22 & group matters.doc.
Our attention is also invited to the fact that the applicant was on
bail during trial which liberty was not misused by him. According
to him, PW-5 has not stated about presence of PW-2 complainant at
the spot of the incident and there is unexplained delay of about
eight hours in lodging FIR. He would further urge that the cousin
sister Bhagirathi who was seeking partition of the property was not
examined so as to establish the motive.
5. While countering aforesaid submissions, learned APP
Smt. M. M. Deshmukh assisted by Mr. Priyal Sarda, counsel for the
respondent No.2 would urge that even if the applicant has not
assaulted the deceased but Section 34 of IPC is rightly invoked by
the prosecution. He would urge that the applicant with common
intention with his brothers has executed the offence in question.
Drawing support from the judgment of Apex Court in the matter of
Subed Ali & Ors. Vs. State of Assam reported in (2020) 10 SCC 517,
he would urge that the foundation of conviction on the basis of
common intention is very much established and inferred.
6. We have appreciated the submissions.
7. The applicant came to be arrested on 20th March, 2017
pursuant to the incident dated 19th March, 2017. Deceased was
cousin brother of applicant. PW-2 and PW-5 real brothers of
deceased were eye witnesses have not attributed any overt act of
assault by the applicant. From the evidence, it is apparent that it is
BGP. 3 of 4
(34)-IA-3191-22 & group matters.doc.
accused No.1 who has caused firearm injury which is cause of
death.
8. During the trial, applicant was on bail which liberty was
not misused by him.
9. If we appreciate testimony of PW-2 and PW-5, rightly so
pointed out that PW-2 even though has carried the deceased to the
hospital, no blood stains were found on his clothes.
10. Apart from above, PW-5 has not stated about the
presence of PW-2 on the spot of the incident. In the aforesaid
background and having regard to the fact that the recovery of
weapon from the applicant from an open space and the applicant is
not attributed any specific role in commission of crime but for his
physical presence, in our opinion, a case for grant of relief under
Sub-Section (1) of Section 389 of CrPC is made out.
11. The application as such stands allowed.
12. The applicant is directed to be released on bail on
furnishing PR bond of Rs.25,000/- with one or two sureties in the
like amount.
13. The applicant shall not contact the witnesses.
[R. N. LADDHA, J.] [NITIN W. SAMBRE, J.]
BGP. 4 of 4
