Bombay High Court
Jayram Tukaram Nimbalkar vs The State Of Maharashtra on 24 January, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
appln-1024-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1024 OF 2022
IN
CRIMINAL APPEAL NO.216 OF 2022
Jayram Tukaram Nimbalkar .. Applicant
Versus
The State of Maharashtra .. Respondent
...
Mr. Satej S. Jadhav, Advocate for the applicant.
Mr. A. M. Phule, APP for the respondent - State.
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : JANUARY 13, 2023.
PRONOUNCED ON : JANUARY 24, 2023.
ORDER :- [Per Smt. Vibha Kankanwadi, J.]
. Present application has been fled for suspension of sentence.
The appeal fled by the applicant/appellant has been admitted by this
Court. In the appeal he is challenging his conviction in Special Case
No.43 of 2020 by learned Special Judge, Ambajogai, who has
convicted him along with other co-accused persons on 02.02.2022 for
various ofences.
2. Heard learned Advocate Mr. Satej S. Jadhav for the applicant
and learned APP Mr. A. M. Phule for the respondent - State.
(1)
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3. With the able assistance of learned Advocate for the applicant
and learned APP, we have gone through the evidence that has been
adduced in the matter before the Trial Judge. It is the prosecution
story that one Babu Shankar Pawar was residing with his sons and the
family members near Yashwantrao Chowk, Ambajogai since about 15
to 20 years prior to the incident. He had purchased 10 Acres 06
Gunthas land from Survey No.171 in the year 1959. Survey No.171
totally admeasuring 20 Acres 12 Gunthas is situated at village
Mangwadgaon, Tq. Kaij, Dist. Beed. It is stated that Babu had agreed
to purchase remaining land from one Salimabee Dastgir on the basis
of agreement to sell and even the possession of the remaining portion
was given to him. The Nimbalkar family i.e. the family of the accused
persons denied the ownership and possession of Babu over the half
portion of the land. There was civil litigation as well as criminal cases
in between the families. Because of the order passed in favour of
Babu by the Appellate Court, Ambajogai, it is stated that Nimbalkar
family was annoyed and it is stated that they were restraining Babu
from cultivating the remaining portion. It is then stated that
deceased Babu was informed by village Sarpanch and Patil that he
should go to the feld for residing there, as the judgment is in his
favour. Such meeting had taken place on 13.05.2020 and, therefore,
deceased Babu proceeded towards the village. They had called one
tractor and then the domestic articles belonging to the family was
uploaded on the tractor trolley. Babu's two sons and their wives
(2)
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started to go on motorcycles, however, remaining family members
were boarded the tractor. They had reached the feld around 9.00 to
9.30 p.m. After unloading the articles, the tractor returned to
Ambajogai. Around 10.00 to 11.00 p.m. one red colour tractor had
come from the cattle shed of Mohan Nimbalkar towards the place
where the Babu and his family members were taken shelter and then
it is stated that it had given dash to Prakash Babu Pawar. Further it is
stated that in the meantime Sachin Mohan Nimbalkar, Hanumant @
Pintu Mohan Nimbalkar and other 9 to 10 persons had come to the
spot with sword, axe, sticks and iron rod. Then it is stated that they
had assaulted the family members of Babu. Babu had also sustained
severe injuries and then he expired. In the said incident Prakash,
Sanjay and Babu were murdered, whereas several others were injured
thereby there was intention to commit murder of those persons also.
4. As aforesaid, after the evidence, original accused Nos.1, 2, 5, 6
and 11 have been held guilty by the learned Special Judge and they
have been sentenced for various ofences. Others have been
acquitted.
5. From the evidence that has been considered it can be defnitely
said that death of the three persons was homicidal in nature, however,
now it is required to be seen as to whether the applicant was part of
the said unlawful assembly and whether any role was attributed to
him so that it can be said that the conviction would be justifed
(3)
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against him. At this stage, we are required to consider the prima
facie evidence. The relationship inter se between the accused persons
has not been stated. Therefore, whether the motive for all the accused
was same and whether the present applicant was also carrying the
same interest and whether evidence to that efect was before the trial
Court or not, is also one of the point. The learned Trial Judge has in
the nutshell taken the evidence that has come against the present
appellant, who was accused No.11. It has been specifcally observed
that name of accused No.11 is not appearing in the FIR, however, it
has come by way of supplementary statement of the informant. P.W.1
informant had deposed that one Tukaram Nimbalkar was along with
other accused persons and it has been further observed that said
Tukaram Nimbalkar is not an accused in this case. P.W.1 does not say
that the applicant was at the spot. It appears that P.W.2 Shivaji Babu
Pawar - son of deceased Babu Pawar, who had also received injuries,
has taken the name of the Nimbalkar family, but had not stated
specifcally the name of the applicant. P.W.3 Santosh is the grandson
of Babu, who was also present at the spot, but he has also not
assigned any specifc role to the applicant. P.W.6 Daduli the daughter-
in-law of deceased Babu has also not assigned any specifc role to the
applicant, still she has identifed the applicant being an accused
present before the Court. Further evidence appears to be in the form
of test identifcation parade and some of them have identifed the
present applicant. Therefore, the question would be as to whether in
(4)
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absence of assignment of specifc role to the applicant, whether the
evidence in the form of test identifcation parade can only be
considered to convict him. Further evidence appears to be in the
form of CDR report. The tower location of his mobile appears to be
near the spot. Independently, such evidence will not be suficient.
Therefore, it is required to be seen as to whether in absence of
substantive evidence the said electronic evidence can be only the
basis for conviction. When all these points have been shown,
defnitely, case is made out for suspension of sentence. It appears
that the applicant was not released on bail throughout the trial, still
on the basis of the evidence that has come, the substantive sentence
deserves to be suspended till the hearing and fnal disposal of the
appeal. Hence, the following order :-
ORDER
I) The application stands allowed.
II) The sentence imposed on the applicant/appellant in
Special Case No.43 of 2020 by learned Special Judge,
Ambajogai is hereby suspended till the hearing and fnal
disposal of Criminal Appeal No.216 of 2022.
III) The applicant/appellant - Jayram Tukaram
Nimbalkar be released on P.R. Bond of Rs.50,000/- with
one solvent surety of Rs.25,000/-.
appln-1024-2022.odt
IV) The applicant/appellant shall not commit any
criminal activity.
V) The applicant/appellant to remain present before the
learned Trial Judge once in six months, till fnal hearing
and disposal of the appeal, starting from the date he
tenders a bail papers and, thereafter, the trial Judge to fx
dates for his subsequent appearances.
VI) In case of two consecutive defaults on the part of
applicant/appellant to remain present before the Trial
Court, the Trial Court to inform this Court about the
same and in that case the prosecution would be at liberty
to fle an application for cancellation of the bail granted
to the applicant/appellant.
VII) Bail before the Trial Court.
[ ABHAY S. WAGHWASE ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
