Bombay High Court

Rajendra @ Rajabhau Subhash Pawar vs State Of Maharashtra And Anr on 1 November, 2023

Bench: R.P. Mohite-Dere, Gauri Godse

2023:BHC-AS:33247-DB
                                                             7-IA-3976-3975-3965-2023.doc




                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 rrpillai
                               CRIMINAL APPELLATE JURISDICTION
                            INTERIM APPLICATION NO. 3975 OF 2023
                                            IN
                              CRIMINAL APPEAL NO. 642 OF 2019

                1. Sagar Prabhu Ghule                             ... Applicants
                2. Subhash Bhima Pawar                (Accused nos. 12 and 15)
                             Versus
                       The State of Maharashtra and            ... Respondents
                       Another

                                           WITH
                            INTERIM APPLICATION NO. 3976 OF 2023
                                            IN
                              CRIMINAL APPEAL NO. 727 OF 2019

                       Rajendra @ Rajabhau                           ... Applicant
                       Subhash Pawar                               (Accused no. 5)
                            Versus
                       The State of Maharashtra and              ... Respondents
                       Anr.

                                           WITH
                            INTERIM APPLICATION NO. 3695 OF 2023
                                            IN
                              CRIMINAL APPEAL NO. 801 OF 2019

                1. Sagar Bharat Pawar                              ... Applicants
                2. Nitin Laxman Pawar                      (Accused nos. 6 and 9)

                            Versus
                       The State of Maharashtra and               ... Respondents
                       Anr.

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Mr. Priyal G. Sarda a/w. Ms. Seema S Dighe for the Applicants in
IA/3975/2023, IA/3976/2023 and IA/3965/2023.
Ms. P. P. Shinde, APP for the State.

                             CORAM : REVATI MOHITE DERE &
                                           GAURI GODSE, JJ.
                              DATE        : 1st NOVEMBER 2023
P. C. :

1.        Heard learned counsel for the parties.


2.        By these applications, the applicants seek suspension of

their sentence and enlargement on bail, pending the hearing and

final disposal of his aforesaid appeal.


3.        The applicants vide judgment and order dated 2 nd April

2019 have been convicted by the learned Session Judge, Barshi,

District-Solapur in Sessions Case No. 181 of 2014 alongwith

other co-accused and sentenced as under :


      -- for the offence punishable under section 148 of the Indian

      Penal Code, to suffer simple imprisonment for three years;


      -- for the offence punishable under Sections 341 read with

      149 of the Indian Penal Code, to suffer simple imprisonment

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     for one month;


     -- for the offence punishable under Section 302 read with 149

     of the Indian Penal Code, to suffer imprisonment for life and

     to pay fine of Rs.10,000/- each, in default to suffer simple

     imprisonment of one year.


     All the aforesaid sentences are been directed to run concurrently.


4.   Learned counsel for the applicants seeks bail on the ground of

parity. He submits that the role of the aforesaid applicants-original

accused nos. 5, 6, 9, 12 and 15 are at par with co-accused no. 7 - Anil

Babu Pawar, accused no. 8 - Babu Bhima Pawar and accused no. 11 -

Santosh Tukaram Pawar. He submits that the said co-accused nos. 7, 8

and 11 had been enlarged on bail by this court vide order dated

7th October 2023.


5.   Learned APP does not dispute the said fact that the role of the

applicants in the aforesaid applications are at par with co-accused nos.

7, 8 and 11 who have been enlarged on bail.




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6.    Perused the papers. According to the prosecution, the incident

took place on 26th April 2014 at around 7.15 - 7.30 a.m. on a public

road, near Indira Nagar Zopadpatti and in front of the house of

accused no. 1- Shivaji @ Anna Chandrakant Pawar. It is the

prosecution case, that about 20 accused who were present at the spot

assaulted Ichappa @ Vitthal (deceased) with weapons, resulting in his

death. Accordingly, P.W.1 - Sitaram, uncle of the deceased, lodged an

F.I.R., as against the accused on the very same day i.e. on 26 th April

2014. After investigation, chargesheet was filed in the said case and

after a full fledged trial, the applicants were convicted as stated

aforesaid.


7.    Prosecution in support of its case, examined three eye witnesses

i.e. P.W. 1- Sitaram; P.W. 2 - Kondabai, grandmother of the deceased

and P.W. 8 - Vijay.


8.    According to P.W. 1 - Sitaram (first informant and eye witness),

he had witnessed the incident of assault of his nephew -Ichappa on

26th April 2014. P.W. 1 - Sitaram in his evidence has not named the

accused who assaulted his nephew and the weapons held by them with


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which his nephew was assaulted. No specific overt act has been

attributed to any of the accused. Admittedly TIP has not been held. In

fact, the said witness has not even identified the applicants in the

court.


9.   As far as evidence of P.W. 2 - Kondabai is concerned, she has

stated that she has witnessed the incident of assault on 26 th April 2014

and has stated about the weapons held by the accused. She has further

stated which of the accused assaulted her grandson and with which

weapon. As far as the applicants are concerned, she has stated that the

applicants were armed with wooden logs. In her cross-examination,

P.W. 2-Kondabai has stated that when she went to the spot, she did not

speak to any person and that when she reached the spot, her

grandson- Ichappa @ Vitthal was lying in a pool of blood and that

Ichappa @ Vitthal's face was in gutter.


10. As far as evidence of P.W. 8-Vijay is concerned, it appears that the

statement was recorded three months after the incident. It prima facie

appears that the said witness was also a panch to the recovery

panchanamas which were prepared much prior to his statement being

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recorded by the police. Even otherwise, perusal of the evidence of the

said witness i.e. P.W. 8-Vijay shows, that on the previous date i.e. on

25th April 2014, he saw about 20 persons whom he has named sitting

near the finance office in an open space and that on the day of the

incident i.e. on 26th April 2014 when he was proceeding for work, he

saw the deceased being assaulted. He has stated that 20 persons who

were present on the previous day assaulted the deceased. It appears

that there was no TIP and the accused have not been identified by the

said witness.     It is pertinent to note that the said witness has not

named any of the accused in his 161 statement and has identified the

applicant in the court for the first time. He has stated that as he was

frightened, he ran away from the spot.


11. It is informed that there are no other circumstantial evidence as

against the applicants, in the form of recovery of any weapon or blood

stained clothes or any other circumstance. It is also stated by the

learned counsel for the applicants that the applicants have no

antecedents. Statement accepted. The applicants are in custody for

almost 9 years.


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12. Having perused the order dated 7 th October 2023 by which the

co-accused nos. 7, 8 and 11 have been enlarged on bail and having

regard to what is stated aforesaid and having considered the evidence

qua the applicants, the applications are allowed and applicants

sentences are suspended and they are enlarged on bail on the

following terms and conditions:

                                      ORDER

i) The Applicants be enlarged on bail on furnishing P.R.Bond in

the sum of Rs.25,000/- each with one or two sureties in the like

amount;

ii) The Applicants shall report to the trial Court, once in three

months on the day/date specified by the trial Court, till the appeals

are finally disposed of;

iii) The Applicants shall keep the trial Court informed of their

current address and mobile contact number and/or change of

residence or mobile details, if any, from time to time;

iv) If there are two consecutive defaults in appearing before the

trial Court, the learned Judge shall make a report to the High 7 /8 7-IA-3976-3975-3965-2023.doc

Court and the prosecution would be at liberty to file an application