Bombay High Court
Santosh Tukaram Pawar And Anr vs The State Of Maharashtra on 9 November, 2023
Bench: R.P. Mohite-Dere, Gauri Godse
2023:BHC-AS:34826-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
rrpillai
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2421 OF 2021
IN
CRIMINAL APPEAL NO. 800 OF 2019
1. Santosh Tukaram Pawar
2. Nagesh Manik Dhotre ... Applicants
Versus
The State of Maharashtra ... Respondent
WITH
INTERIM APPLICATION NO. 1289 OF 2023
IN
CRIMINAL APPEAL NO. 410 OF 2023
Shashikant Chandu Ghode ... Applicant
Versus
The State of Maharashtra ... Respondent
WITH
INTERIM APPLICATION NO. 3431 OF 2023
IN
CRIMINAL APPEAL NO. 652 OF 2019
1. Anil Babu Pawar
2. Babu Bhima Pawar
... Applicants
Versus
The State of Maharashtra ... Respondent
Ms. Vrushali Maindad for the Applicant in IA/2421/2021 and
IA/1374/2020.
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Mr. Vikrant Phatate for the Applicant in IA/1289/2023.
Mr. Tohid Shaikh i/b. Ms. Anjali Patil for the Appellant in
Appeal/613/2017.
Mr. Omkar Akhade i/b. Mr. Priyal G. Sarda for the Appellant in
Appeal/642/2019.
Mr. Yogesh Birajdar i/b. Mr. Nagraj Shinde for the Applicant in
IA/3431/2023.
Ms. P. P. Shinde, APP for the State.
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
DATE : 7th OCTOBER 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 :
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-- 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
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. 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
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2014. After investigation, chargesheet was filed in the said case and
after a full fledged trial, the applicants were convicted as stated
aforesaid.
5. 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.
6. 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 named the
accused who assaulted his nephew and the weapons held by them with
which his nephew was assaulted. No specific overt act has been
attributed to the accused nor have the applicants been named by P.W. 1
in 161 statement. A general statement has been made by the P.W. 1
before the court that Accused no. 14 along with several other Accused
persons was holding stick, stone, swords and other weapons. In fact,
the said witness has not even identified the applicants in the court. It
appears that this witness has identified the Accused no. 11 and 14 in
the court, for the 1st time.
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7. 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.
8. 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
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
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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.
9. It is informed that there is 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.
10. Considering the role of the applicants and the evidence qua
them, the application is allowed and the applicants' sentences are
suspended and they are enlarged on bail on the following terms and
conditions:
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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
Court and the prosecution would be at liberty to file an application
seeking cancellation of bail.
11. The Applications are allowed in the aforesaid terms and are
accordingly disposed.
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All concerned to act on the authenticated copy of this order.
GAURI GODSE, J. REVATI MOHITE DERE, J.
Note : This order is corrected vide speaking to minutes of the order dated 9th November 2023
Signed by: Rajeshwari R. Pillai
Designation: PS To Honourable Judge
Date: 10/11/2023 17:30:57
