Vijay Shivram Sabale And Ors vs State Of Maharashtra
2023 Latest Caselaw 9714 Bom

                                                                   2592-2023-IA=.doc
2023:BHC-AS:27346
                    Uday S. Jagtap


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION

                                     INTERIM APPLICATION NO. 2592 OF 2023
                                                     IN
                                       CRIMINAL APPEAL NO. 804 OF 2023

                    1. Vijay Shivram Sabale
                    2. Sudam Shivram Sabale
                    3. Anil Sudam Sabale                           .. Applicants

                          Vs.
                    The State of Maharashtra                       .. Respondent
                    Through Satara Taluka Police
                    Station, Dist. Satara
                                                    .....
                    Dr. Uday P. Warunjikar h/f Mr. Mukund S. Mane for the applicants
                    Mr. A.R. Kapadnis, APP for the respondent - State
                    Mr. Paras Yadav i/b Mr. Sumant Patole for the intervenor
                    Mr. D.D. Gaikwad, H.C. Satara Taluka Police Station present
                                                    .....

                                               CORAM : PRITHVIRAJ K. CHAVAN, J.

Reserved on : 11th SEPTEMBER, 2023 Pronounced on : 15th SEPTEMBER, 2023

ORDER :-

1. This is an application under Section 389 of the Criminal

Procedure Code by the applicants, who have been convicted and

sentenced by the Sessions Judge, Satara in Sessions Case No.74 of

2016 on 05.07.2023. The operative part of the impugned judgment

is as under :-

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"1. Accused No.1 Vijay Shivram Sabale, No.2 Sudam Shivram Sabale and No.5 Anil Sudam Sabale are convicted under Section 235(2) of the Code of Criminal Procedure, 1973, of the offences punishable under Sections 143, 147, 148, 307 r/w 149 of the Indian Penal Code.

2. Accused No.1 Vijay Shivram Sabale is sentenced to suffer rigorous imprisonment of four years of the offence punishable under Section 307 r/w 149 of the Indian Penal Code and to pay a fine of Rs.5,000/- (Rupees Five Thousand only), in case of default of payment of fine, he shall suffer 3 months (three months) simple imprisonment.

3. Accused No.2 Sudam Shivram Sabale is sentenced to suffer rigorous imprisonment of four years of the offence punishable under Section 307 r/w 149 of the Indian Penal Code and to pay fine of Rs.5,000/- (Rupees Five Thousand only), in case of default of payment of fine, he shall suffer 3 months (three months) simple imprisonment.

4. Accused No.5 Anil Sudam Sabale is sentenced to suffer rigorous imprisonment of four years of the offence punishable under Section 307 r/w 149 of the Indian Penal Code and to pay a fine of Rs.5,000/- (Rupees Five Thousand Only), in case of default of payment of fine, he shall suffer 3 months (three months) simple imprisonment.

5. Accused No.1 Vijay Shivram Sabale is further sentenced to suffer rigorous imprisonment of two months of the offence punishable under Section 143 r/w 149 of the Indian Penal Code and to pay a fine of Rs.500/- (Rupees Five Hundred only), in case of default of payment of fine, he shall suffer 15 days (fifteen days) simple imprisonment.

6. Accused No.2 Sudam Shivram Sabale is further sentenced to suffer rigorous imprisonment of two months of the offence punishable under Section 143 r/w 149 of the Indian Penal Code and to pay a fine of Rs.500/- (Rupees Five Hundred only), in case of default of payment of fine, he shall suffer 15 days (fifteen days) simple imprisonment.

7. Accused No.5 Anil Sudam Sabale is further sentenced to suffer rigorous imprisonment of two months of the

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offence punishable under Section 143 r/w 149 of the Indian Penal Code and to pay a fine of Rs.500/- (Rupees Five Hundred only), in case of default of payment of fine, he shall suffer 15 days (fifteen days) simple imprisonment.

8. Accused No.1 Vijay Shivram Sabale is further sentenced to suffer rigorous imprisonment of one year of the offence punishable under Section 147 r/w 149 of the Indian Penal Code and to pay a fine of Rs.1,000/- (Rupees One Thousand only), in case of default of payment of fine, he shall suffer 1 month (one month) simple imprisonment.

9. Accused No.2 Sudam Shivram Sabale is further sentenced to suffer rigorous imprisonment of one year of the offence punishable under Section 147 r/w 149 of the Indian Penal Code and to pay a fine of Rs.1,000/- (Rupees One Thousand only), in case of default of payment of fine, he shall suffer 1 month (one month) simple imprisonment.

10. Accused No.5 Anil Sudam Sabale is further sentenced to suffer rigorous imprisonment of one year of the offence punishable under Section 147 r/w 149 of the Indian Penal Code and to pay a fine of Rs.1,000/- (Rupees One Thousand only), in case of default of payment of fine, he shall suffer 1 month (one month) simple imprisonment.

11. Accused No.1 Vijay Shivram Sabale is further sentenced to suffer rigorous imprisonment of two years of the offence punishable under Section 148 r/w 149 of the Indian Penal Code and to pay a fine of Rs.2,000/- (Rupees Two Thousand only), in case of default of payment of fine, he shall suffer 2 months (two months) simple imprisonment.

12. Accused No.2 Sudam Shivram Sabale is further sentenced to suffer rigorous imprisonment of two years of the offence punishable under Section 148 r/w 149 of the Indian Penal Code and to pay a fine of Rs.2,000/- (Rupees Two Thousand only), in case of default of payment of fine, he shall suffer 2 months (two months) simple imprisonment.

13. Accused No.5 Anil Sudam Sabale is further sentenced to suffer rigorous imprisonment of two years of the offence punishable under Section 148 r/w 149 of the Indian Penal

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Code and to pay a fine of Rs.2,000/- (Rupees Two Thousand only), in case of default of payment of fine, he shall suffer 2 months (two months) simple imprisonment.

14. All the substantive sentences shall run concurrently.

15. Accused No.3 Sunil Sudam Sabale, No.4 Raghunath Baburao Sabale and No.6 Amol Macchindra Sabale are hereby acquitted under Section 235 of the Code of Criminal Procedure for the offences punishable under Section 143, 147, 148, 307 r/w 149 of the Indian Penal Code.

16. The muddemal property at Sr.Nos. 1 to 17 being worthless, be destroyed after appeal period is over, in case the appeal is preferred, the muddemal be disposed off as per the decision of Hon'ble Appellate Court. The muddemal property at Sr.No.18 vehicle dumper bearing No.MH-11- AL-4261 is already returned to its registered owner on his execution of bond. The said bond stands canceled after appeal period is over.

17. The accused No.1 Vijay Shivram Sabale, No.2 Sudam Shivram Sabale and No.5 Anil Sudam Sabale are entitled for set off as per the provisions of Section 428 of the Code of Criminal Procedure.

18. The accused No.1 Vijay Shivram Sabale, No.2 Sudam Shivram Sabale and No.5 Anil Sudam Sabale shall surrender to their bail bonds.

19. The bail bonds of accused No.3 Sunil Sudam Sabale, No.4 Raghunath Baburao Sabale and No.6 Amol Macchindra Sabale shall stand cancelled.

20. The accused No.3 Sunil Sudam Sabale, No.4 Raghunath Baburao Sabale and No.6 Amol Macchindra Sabale to furnish P.R. Bond of Rs.15,000/- each with one surety in like amount towards the compliance of Section 437-A of the Code of Criminal Procedure, 1972.

21. Copy of judgment and order be given to the accused No.1 Vijay Shivram Sabale, No.2 Sudam Shivram Sabale and No.5 Anil Sudam Sabale free of costs."

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2. Few facts germane for disposal of the application can be

stated as follows.

3. Complainant - Rahul Madhukar Sabale was then working as a

Police Head Constable at Kolhapur. The father of the complainant

is a resident of village Vaduth. The complainant has an agricultural

land at Vaduth. His parents reside at Vaduth. The complainant had

visited Vaduth on 11.11.2015 during Diwali holidays. It is the case

of the prosecution that on 14.11.2015 around 10.00 a.m., Mahesh

Sabale - brother of the complainant was driving his tractor towards

Vetalpatti Shiwar. When he reached near the Kanher Canal road,

he noticed one of the applicants unloading sand illegally

transported by him on the public road. It was stolen sand which

was being unloaded by the applicant - Anil, who was in habit of

transporting and unloading illegally excavated sand on a public

road. Mahesh Sabale warned him not to unload sand on a public

road. Applicant - Anil, therefore, threatened Mahesh not to

obstruct him in unloading the sand on a public road, else, he would

kill him as well as kill his family members. Mahesh, in turn,

informed about the threats to the complainant - Rahul Sabale.

Rahul, therefore, called applicants - Anil, Vijay and others in front

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of his house and asked them not to quarrel with Mahesh. The

applicants with other accused thereafter left the place.

4. On 14.11.2015 around 2.00 p.m., applicants - Anil, Sudam

and Vijay along with rest of the accused, in prosecution of their

common object, formed an unlawful assembly in front of the house

of complainant. They arrived over there in a Dumper bearing

Registration No. MH-11-AL-4261. They raised shouts and

threatened the complainant and his family members of dire

consequences since they (complainant and his family) were

obstructing in illegal excavation of sand. By that time, Madhukar

Sabale - father of the complainant came out of the house. He was

assaulted by the applicants. Madhukar screamed for help. The

complainant and his brother Mahesh came out of the house. They

too were assaulted by the applicants and the rest of the accused.

5. It is the contention of the prosecution that Mahesh was

assaulted by means of wooden log, iron rod, axe, wooden sticks on

his head, back and hands. He was assaulted by accused -

Raghunath and Sunil by means of wooden logs on his head and

back. When the complainant went for his rescue, he too was

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assaulted by applicant - Anil with an iron rod on his head. The

Complainant, Mahesh and their father Madhukar sustained

grevious injuries due to the said assault. They were treated at

Sanjeevan Hospital.

6. A report came to be lodged. Investigation was conducted by

the Investigating Agency. Statements were recorded and charge-

sheet was filed.

7. Upon committal, learned Sessions Judge framed a charge

against the applicants and other accused. After hearing the

prosecution and defence, the Sessions Judge convicted and

sentenced the applicant and the other accused as above. Learned

Sessions Judge acquitted accused no.3 Sunil Sabale, accused no.4 -

Raghunath Sabale and accused no.6 - Amol Sabale and convicted

applicants Vijay, Sudam and Anil.

8. I heard Dr. Warunjikar, learned Counsel for the applicants as

well as Mr. Kapadnis, learned APP for the respondent - State.

9. Dr. Warunjikar would argue that maximum sentence awarded

to the applicants by the Sessions Court is of four years for the

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offence under Section 307 of the IPC. More emphasis of the

learned Counsel was on the aspect of age of the applicant - Vijay,

who according to the learned Counsel is more than 80 years,

however he had been shown to be 52 years old by the prosecution.

10. Learned Counsel has also invited my attention to the evidence

of the prosecution witnesses, more particularly, the evidence of PW-

9 Dr. Vinay Sutar, a Homeopathic Doctor attached to Sanjeevan

Hospital, Satara as well as the Medical Certificate issued qua the

injured witnesses. Learned Counsel has also tried to bring on

record inconsistencies in the evidence of PW-1 Madhukar Sabale,

PW-7 Rahul Sabale and PW-8 Sayaji Kadam.

11. PW-5 Manohar Farande, the Head Constable attached to

Satara Taluka Police Station at the relevant time was directed to

record the statements of the injured after visiting Sanjeevan

Hospital. He recorded the statements of all the 3 injured

witnesses. The statements were recorded by his writer namely

Police Naik - Barge. Interestingly, all the injured witnesses

including PW-7 Rahul Sabale, a Police Sub-Inspector, were admitted

in Sanjeevan Hospital and not in the Civil Hospital, which is

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adjoining to the Sanjeevan Hospital. PW-5 Manohar Farande, in

his cross-examination admitted that Sanjeevan Hospital is a private

hospital adjoining to the Civil Hospital and that presence of police

is for 24 hours for medico-legal cases. This is a very crucial aspect

as to why despite alleging serious assaults upon the victims, they

were not admitted in the Civil Hospital? This witness further

admits that he had not recorded the time of recording the statement

of all the 3 injured. He admitted that PW-7 Rahul Sabale was in

ICU.

12. The evidence of injured Madhukar Sabale indicates that on

14.11.2015, when his son injured Mahesh was returning home with

the fodder for the livestock in a tractor, he noticed applicant - Anil

unloading sand from a Dumper on a public road. When he asked

Anil not to dump sand on public road, Anil is said to have

threatened injured Mahesh with dire consequences. On the same

day, around 2.00 p.m. when this witness with his wife and

daughter-in-laws were at home, the applicants along with rest of the

accused came and raised shouts. They were armed with axe, iron

rods and wooden sticks/logs. The applicant - Vijay inflicted a blow

of an axe on the head of this witness while applicant - Sudam

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Sabale assaulted on his hand by means of wooden stick. Applicant -

Anil Sabale inflicted blows by means of an iron rod and one Amol

Sabale had assaulted Rahul on his head by means of wooden stick.

When the wife of this witness attempted to rescue the injured, she

too was manhandled by the applicants, resulting into an injury to

her hand. All the 3 injured were admitted in Sanjeevan Hospital.

There is an omission in respect of assault by applicant - Vijay by

means of an axe on his head, which is material.

13. PW-7 Rahul Sabale, who is a Police Sub Inspector posted at

Kolhapur had been to the village on the day of incident. He spoke

in tune with his father PW-6 Madhukar Sabale as regards the

incident as well as the assault by the applicants. He deposed that

he was assaulted on the head by applicant - Anil with an iron rod,

however, his father deposed that Amol Sabale assaulted this witness

on his head with a wooden stick. PW-7 Rahul further deposed that

an unknown person had assaulted on his back by means of wooden

stick. As regards the assault on the head of PW-6 Madhukar Sabale

by applicant - Vijay, this witness also corroborated the evidence of

his father. The question would be, if all the injured were so brutally

assaulted by the applicants and other accused by means of different

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weapons of offences, why all of them were not admitted in the Civil

Hospital where police constables are deployed round the clock for

medico-legal cases?

14. Before scrutinizing the medical evidence, it would be

interesting to go through the cross-examination of PW-7 Rahul

Sabale wherein he had given vital admissions which prima facie

create doubt as regards alleged serious injuries suffered by him and

other witnesses. When he was asked in the cross-examination as to

whether, despite his admission in ICU he had left on 16.11.2015 at

4.30 p.m. and returned at 5.05 p.m., to which he answered as he

did not remember. He was asked whether he was discharged on

17.11.2015, 18.11.2015 and 19.11.2015 and again return back, he

replied that he did not remember. However, when his attention

was invited to the papers of Sanjeevan Hospital (Exh.94) about his

entry and exit from the said hospital on three occasions as above

and his signature over there, he admitted the same. This creates a

doubt as regards the authenticity of his evidence as regards the

assault. How can a person who is in ICU would leave the ICU on

his own and come back thrice? He also admits that he did not

inform the concerned police station either by phone or by sending

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some person as regards the incident inspite of the fact that he

himself is a Police Sub Inspector.

15. Turning to the evidence of PW-9 Vinay Sutar. He examined

all the 3 injured namely Madhukar, Mahesh and Rahul Sabale who

were admitted on 14.11.2015. According to this witness, he

noticed the following injuries on the head of injured Madhukar

Sabale.

"(i) Head injuries over scalp, occipital and vertex region. The injury on occipital region was of 4 inch x deep. The size of injury over scalp was 1 inch x deep. The size of injury on parietal region 3 inch x deep."

16. It is difficult to understand as to the exact nature and the

depth of the injury since the witness has simply testified that 4 inch

x deep, 1 inch x deep and 3 inch deep. He did not describe length,

width or the depth of the injuries in particular. It reveals from the

record that just after the commencement of his evidence, this

witness took ill and, therefore, the case was adjourned on

09.12.2022. The evidence of the witness thereafter continued on

22.02.2023.

17. On the second occasion PW-9 Dr. Vinay Sutar described

following injuries on the person :- (not recorded on who's person)

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"(i) Cut injury due to sharp instrument 2 nd, 3rd distal phalynx on right hand second and third phalynx, bleeding active, simple in nature, Injury no.

(i) was grievous in nature.

(ii) Multiple abrasions over back, 3x2 inch, 1x2 inch, 3x4 inch and 2x4 inch, all over left side of back, simple in nature. CT Scan was done. No any significant intra cranial abnormality found. Accordingly, I issued the certificate under my signature. Certificate now shown to me is the same, it bears my signature, contents are correct, it is at Exh.108."

18. In case of Mahesh Sabale, he noticed following injuries :-

"1. (i) Lacerated injury, CLW 2 inch x 1.5 inch deep, right posterial parieto occipital region, bleeding present, grievous in nature.

(ii) Lacerated injury CLW 1 inch x 1 cm deep, over right poareital temporal region, bleeding present, grievous in nature.

(iii) Lacerated injury CLW 3 inch x 1.5 cm deep over vertex region, bleeding present, grievous in nature.

(iv) Lacerated injury, CLW over left forearm 4 inch x 1.5 cm deep muscle, bleeding present, grievous in nature.

2. Multiple abrasions, 4 abrasions over left side of back, simple in nature.

CT Scan was done. No any significant intra cranial abnormality found. Accordingly I issued the certificate under my signature. Certificate now shown to me is the same, it bears my signature, contents are correct, it is at Exh.109."

19. In case of Rahul Sabale, he noticed following injuries :-

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"(i) Injury due to sharp instrument 4 x 1 x deep, left parietal region, bleeding present, grievous in nature. CT Scan was done. No any significant intra cranial abnormality found. Accordingly I issued the certificate under my signature. Certificate now shown to me is the same, it bears my signature, contents are correct, it is at Exh.110."

20. In his cross-examination, he admitted not mentioning the age

and colour of the injuries in the certificates. He had also admitted

that he did not mention injury no.(i) in the certificate issued in

respect of the injured Madhukar Sabale as to whether it is on left or

right side. Surprisingly, he admits that in a lacerated wound external

hemorrhage is a rule. He had not mentioned in the certificate that

whether the injuries were independent or corresponding. He also

admits that the abrasions are possible due to itching.

21. As regards discharge of injured Rahul Sabale on 16.11.2015,

17.11.2015, 18.11.2015 and 19.11.2015, he testified that the said

patient was discharged at his own request. He also admits that as

and when Rahul Sabale returned, he was not examined clinically by

him. This also creates a doubt as regards medical certificate issued

by this witness. His further admission again creates doubt as

regards the genuineness of the medical certificate issued by

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Sanjeevan Hospital. He had produced the extract of register under

the signature of Administrative Officer of the Hospital viz. Prajakta

Sutar. She was not examined by the prosecution. He admits that

patients were treated by Dr. Y.S. Patil and himself. However,

certificates were signed by him for Dr. Y.S. Patil. This is something

very strange as to how he signed certificate on behalf of Dr. Y.S.

Patil. Dr. Y.S. Patil has not been examined. According to him, the

certificates were prepared as per the instructions given by Dr. Y.S.

Patil and not by this witness on his own. He also admits that none

of the certificate indicates that he examined all the 3 injured and

treated them.

22. As regards seizure panchanama, PW-3 Pradeep Deshmukh

acted as a panch witness in respect of seizure of the clothes of the

injured and the weapons. In cross, he admits that at the time of

giving evidence, he had written time and name of the applicant -

Anil Sabale on his hand. He testified that constable Pradeep

Deshmukh had produced the clothes at the police station, however,

this witness was not aware as to whose clothes were seized by the

police in his presence. This witness is a public servant, working in

the office of Block Development Officer, Satara. He admits that he

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was not summoned by the police but he had visited the police

station as per instructions of Block Development Officer.

23. Learned APP, has invited my attention to the evidence of PW-

6 Madhukar Sabale and PW-7 Rahul Sabale by contending that

specific role played by each of the applicants has been proved.

However, he could not explain as to why there are inconsistencies

in the testimony of the injured witnesses as well as the reason as to

why the injured were admitted in a private hospital despite the fact

that Civil Hospital was adjoining to the Sanjeevan hospital, where

police constables have been deployed 24 hours for medico-legal

cases?

24. It is a matter of record that applicant - Sudam Sabale is 80

years old as per the report submitted by Medical Officer, Kolhapur

Central Prison on 25.08.2023.

25. Considering the nature of the evidence as well as the other

aspects discussed hereinabove, without going into the merits /

demerits. It seems that the applicants who were on bail during trial

have not misused the liberty granted in their favour and, therefore,

they can be released on bail in light of the fact that the appeal is not

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likely to be heard in near future. It is a matter of record that

applicant nos.1 and 2 were on anticipatory bail by an order dated

03.12.2015 while applicant no.3 was granted bail after his arrest.

There are no antecedents brought on record by the prosecution. It

is submitted that applicant - Vijay is a public servant. These are

prima facie observations.

26. In view of the above, detention of the applicants in the

custody till the appeal is finally heard would not be just and proper.

For the reasons stated hereinabove, the execution of sentence needs

to be suspended till the appeal is heard. Now, to the order :-

ORDER

(i) The application is allowed.

(ii) The execution of the sentence is suspended upon each of the applicant furnish a P.R. bond in the sum of Rs.30,000/- with one or two sureties in like amount to the satisfaction of the Sessions Judge, Satara.

(iii) The applicants shall furnish their permanent residential addresses as well as mobile numbers to the concerned police station.

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(iv) The applicants shall attend Satara Taluka Police Station on 1st day of each month between 10.00 a.m. to 12.00 noon.

(v) If there are two consecutive defaults in attending the concerned police station, the prosecution would be at liberty to file an application seeking cancellation of bail.

27. The application is disposed of in the aforesaid terms.

(PRITHVIRAJ K. CHAVAN, J.)

Signed by: Uday S. Jagtap Designation: PS To Honourable Judge 18 of 18 Date: 15/09/2023 18:43:44