Bombay High Court
Jayadeep @ Hanma Raju Chavan vs The State Of Maharashtra on 1 August, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:31091-DB
1/7 19 IA-2794-24 (31-7).odt
MANDIRA MILIND
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by MANDIRA
MILIND SALGAONKAR
SALGAONKAR Date: 2024.08.06 18:18:38 +0530
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2794 OF 2024
IN
CRIMINAL APPEAL NO. 817 OF 2021
Jayadeep @ Hanma Raju Chavan .. Applicant
Versus
The State of Maharashtra .. Respondent
...
Mr.Aniket Nikam i/b Mr.Amit Icham for the Applicant.
Dr.Ashvini A. Takalkar, A.P.P. for the State/Respondent.
...
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 01st AUGUST, 2024
P.C:-
1. The learned counsel Mr.Nikam representing the
Applicant, who has filed an application for suspension of
sentence and for securing his release on bail, has placed
reliance upon the two orders passed by this Court in the case
of Riyaz alias Kalya Sadaru Desai i.e. Accused No.3 and Vishal
s/o Sagar Giri i.e. Accused No.4, which are passed on
29/02/2024 and 19/04/2024 respectively. Mr.Nikam seeks
extension of benefit of these orders to the Applicant and,
therefore, we have perused the said orders, which are placed
before us.
M.M.Salgaonkar
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Upon perusal of both the orders, one thing is evident that
the Division Bench, by referring to the decisions of the Apex
Court in the case of Saudan Singh Vs. The State of
Maharashtra1 and Suleman Vs. The State of Uttar Pradesh2 as
well as in the case of Dinesh @ Paul Daniel Khajekar Vs. State
of Maharashtra & Ors. (Cri.Appeal No.2987 of 2023 arising
out of S.L.P. (Crl) No.10320 of 2023 decided on 25/09/2023) ,
on the ground that the applicants are incarcerated for more
than ten years, had deemed it appropriate to suspend the
sentence and release the applicants on bail.
In the wake of the decision of the Apex Court in the case
of Omprakash Sahni Vs. Jai Shankar Chaudhary & Anr. 3, a
judgment delivered at a later point of time i.e. after the
judgments delivered in Saudan Singh (supra) and Suleman
Singh (supra), where it is specifically observed that while
considering the application under Section 389 of the Code of
Criminal Procedure, the merits of the matter will have to be
appreciated, as the benefit of the presumption of innocence is
not available to an accused, who is convicted by a competent
court and the Court will look into the material evidence that
was placed before the trial Judge, who derived a finding of
conviction resulting into imposition of sentence, we have
perused the material placed before us, which include the
impugned judgment dated 06/03/2021, passed by the Sessions
Judge, Kolhapur and the evidence of the prosecution
witnesses.
1 2022 SCC OnLine SC 697
2 2022 SCC OnLine 714
3 (2023) 6 SCC 123
M.M.Salgaonkar
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2. The incident is alleged to have taken place on
02/02/2014, when the two groups clashed, resulting into two
murders committed near Koyaskal Chowk and under the
flyover and it is also brought on record by the prosecution that
the some prior money transaction, happened to be the cause
for the murders. Pursuant thereto, a meeting was held on
31/01/2014 to settle the matter amicably, but it was not
successful and as a sequel, when both the deceased i.e. Samir
Khatik and Nitin Shinde alongwith their friends were standing
near the house of Samir Khatik, the accused persons arrived
on the spot in Tavera car, armed with weapons and chased the
deceased. Both the deceased were assaulted at different places
and through distinct witnesses, the act of assault has come
before the trial Judge.
As far as PW 1-Amar Shirse, who was acquainted to both
i.e. present Applicant as well as Riyaz, Accused No.3, who is
directed to be released on bail is concerned, he refer to the
previous incident of 31/01/2014, when Nitin, one of the
deceased, asked both the accused, whether they want to settle
the dispute.
Thereafter, he narrate the incident of 02/02/2014, when
he alongwith Vishal had gone to Ichalkaranji to meet some
relatives of Vishal and while returning he received phone call
from his maternal uncle, Nitin and, therefore, he informed
Vishal that they will stop at Temblai Naka to collect his uncle.
While they were proceeding from Temblai Wadi bridge towards
Takala, he witnessed four persons chasing Nitin Shinde, his
maternal uncle, and he could clearly watch the same in the
electric light, though it was nighttime. When he stopped the
M.M.Salgaonkar
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motorcycle, he noticed that accused No.1 i.e. the present
Applicant has caught hold his uncle from back, but he
somehow managed to free himself and started running
towards Temblai Naka, the present Applicant chased him
when his uncle fell down and on holding his hands, Riyaz,
accused No.3 stabbed him by knife. Thereafter two other
persons assaulted him and it is also his version that accused
No.2 lifted stone from the side of the road and hit on his uncle's
head.
Due to fear, he fled away towards his house and apprised
his mother as well as the persons in the neighbourhood about
the incident, when he came to know that even Samir Khatik
was found murdered below the railway bridge and he was
stabbed by sword, sickle and knife and this was on account of
previous dispute revolving around money being borrowed.
3. Another witness i.e. PW 2-Sagar Sontakke, who also refer
to the past enmity involving money, narrate the incident dated
31/01/2014. He is also a witness to the incident that took place
on 02/02/2014 and according to him, at around 10.00 p.m.,
Lalya, Samir Khatik and Nitin Shinde came to his house on
bike and Nitin told him that his nephew i.e. PW 1 and Vishal
Ghaste had gone to Ichalkaranji on motorcycle and he told him
to bring motorcycle at Temblai Naka to collect him. While PW
2 was standing in front of his door under one tree, he noticed
one Tavera car coming from the side of public toilet at Kondala
and halted by their side. From the said car, the present
Applicant, Ghayal Kawale and Kalya Desai i.e. Accused No.3
alighted alongwith 5 to 6 unknown persons. On seeing that
M.M.Salgaonkar
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they were armed with knife, sword and sickle, Samir and Nitin
ran away towards flyover bridge, whereas he ran away
towards public toilet at Kondala side. Even the other person
i.e. Lalya also ran to a shelter. The two persons followed PW 2
and they pelted stones on him.
After a while, when he proceeded towards direction of
Samir and Nitin, he noticed that Samir was murdered near one
closed room situated below flyover bridge and he made attempt
to call Nitin, but received no response. When Nitin was
searched for, it was revealed that he was also murdered at
Telephone office square.
Another witness is the mother of Samir, one of the
deceased, being examined as PW 3, though she has not actually
seen the incident, but saw the accused persons running.
4. Another eye witness to the incident is PW 5-Vishal, who
was accompanying PW 1 and his statement is in sync with PW
1, when he speak about he accompanying Amar Sirse, on the
request of Nitin Shinde, the deceased. The version of PW 1 is
corroborated by this witness and a specific role has been
attributed to the present Applicant, as he has deposed that he
saw Nitin Shinde being chased by Hanmya Chavan, Kalya
Desai, one fair unknown person alongwith 2-3 unknown
persons.
He further deposed that Kalya was carrying a knife,
whereas the unknown person was having a sword and he could
see them in light of flood lamp in Koyaskal chowk. In sync
with PW 1, he has attributed role to the present Applicant.
M.M.Salgaonkar
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5. Corresponding to the version of the eye witnesses are the
postmortem reports of both the deceased, which have recorded
multiple injuries and as far as Samir is concerned, he has
sustained 18 injuries and as per PW 18, he found scalp
haemotoma over right fronto parieto, temporo occipital region
as well as linear fracture of right frontal parietal, temporal
and occipital bones. As far as Nitin Shinde is concerned, PW
18 has given cause of death as hemorrhagic shock due to
injuries to vital organs and the postmortem report recorded
18 injuries on his person.
In addition, the prosecution has also examined Rahul
Shingade, the panch witness on recovery of blood stained
clothes as well as weapons i.e. sword and chopper from the
present Applicant.
6. With the material placed before the Sessions Judge, the
present Applicant stood convicted for committing the offences
punishable under Sections 302, 147, 148, 352, 120B read with
Section 149 of the Indian Penal Code. Since the presence of the
Applicant on the spot was clearly established by the
convincing evidence led by the prosecution, there is no scope
to doubt the prosecution case, which has prompted the learned
Judge to hand over conviction to the Applicant.
On being satisfied with the material before the Sessions
Judge, which was sufficient to result into his conviction and
considering the specific role assigned to him, we are not
inclined to entertain the application and definitely not on the
ground of parity, as we have examined the merits of the case
M.M.Salgaonkar
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and have arrived at the conclusion that the Applicant does not
deserve the relief prayed for in the Application.
Resultantly, the Application is dismissed.
(MANJUSHA DESHPANDE,J.) (BHARATI DANGRE, J.)
M.M.Salgaonkar
