Bombay High Court
Ganesh Baban Nimse vs The State Of Maharashtra on 31 January, 2024
2024:BHC-AUG:2031
CriAppln-3845-2023
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3845 OF 2023
IN
CRIMINAL APPEAL NO. 306 OF 2023
Ganesh s/o Baban Nimse
Age : 32 years, Occu. Agri.,
R/o. Nimse Vasti, Walunj,
Taluka and District Ahmednagar. ... Applicant
[Orig. Accused]
Versus
The State of Maharashtra ... Respondent
.....
Mr. N. B. Narwade, Advocate for the Applicant.
Mr. S. M. Ganachari, APP for Respondent-State.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 25.01.2024
Pronounced on : 31.01.2024
ORDER :
1. This application for suspension of substantive sentence and
grant of bail is filed by applicant-original accused no. 2 in Sessions
Case No. 336 of 2016, wherein, vide judgment and order of
conviction dated 29.03.2023 passed by learned Additional Sessions
Judge, Ahmednagar, the appellant, along with other co-accused
persons, stood convicted for offence punishable under Sections 143,
147, 148, 307 r/w 149, 325 r/w 149, 324 r/w 149, 323 r/w 149, 506
r/w 149 of the Indian Penal Code [IPC] and Section 4 r/w 25 of the
Arms Act.
CriAppln-3845-2023
2. Submissions are advanced that present applicant had also
moved application along with other applicants vide Criminal
Application No.1376 of 2023, however at that time relief as regards
the present applicant Ganesh was not pressed. Bail of other applicants
was granted by this court by order dated 17.04.2023. It is specifically
pointed out that while disposing of the bail application, this court had
made the following observations in para 7 of the order :
"7. Learned counsel for the applicant - Ganesh did not
press his application for the present. It is observed that the
court has not heard learned counsel for the applicant -
Ganesh, at length, and therefore, has not arrived at any
conclusion regarding merits of his case for grant of
suspension of substantive sentence. The applicant - Ganesh
may revive his prayer after a period of six months."
That, in view of such liberty, now bail for applicant Ganesh is
pressed into service.
3. In support of relief of suspension of sentence and grant of bail,
learned counsel for the applicant submitted that apparently the
incident in question is fallout of a civil dispute. That, witnesses are
interested witnesses. Medical Experts are giving contrary versions
CriAppln-3845-2023
about nature and size of injury. That, as appeal would take long time
to be heard and decided, it is prayed that present applicant be set at
liberty by allowing the bail application.
4. Learned APP pointed out that charge of attempt to commit
murder has been held to be proved after full fledged trial. Role of
applicant Ganesh is well defined. He is said to be armed with sword
and the same is said to be put to use. Medical experts are
corroborating the testimony of eye witness account and so he prays to
dismiss the application.
5. In the light of above submissions and on prima facie going
through the papers, the incident in question seems to have taken
place at 8.45 a.m. on 12.10.2015. From the FIR itself it is prima facie
revealed that accused party and complainant party are at loggerheads
on account of common ridge and the incident seems to be a fallout of
the same. In the FIR, as many as 9 persons are named. However,
except present appellant, other seven have been granted bail by this
court and sessions case was abated against one.
6. It seems that on 12.10.2015, accused named in the FIR went
towards complainant party getting armed with sword, iron pipe and
CriAppln-3845-2023
rod and the same is said to be put to use by accused persons in
assaulting complainant Ashok, his brothers Nilesh and Popat, father
Suresh and mother Mandabai. Present applicant/accused Ganesh had
given blow of sword on the head of injured Nilesh causing him
bleeding injury. Said injured Nilesh is examined in the capacity of
PW6. PW7 Dr. Sonar and PW8 Dr. Kohak seem to be the medical
witnesses who examined and treated the injured and issued injury
certificate. As regards any variance in that testimony or impact of
non-examination of the surgeon who conducted surgery on injured
Nilesh, it cannot be gone into at this stage. Role attributed to
applicant Ganesh is well defined i.e. he gave blow of sword on the
head of injured Nilesh. Charge is framed for commission of offence
under Section 307 r/w 149 of IPC. True it is that record shows that
other co-accused are given benefit of bail by this court by order dated
17.04.2023, however there is specific observation in the said order
that, as against those co-accused, simple injuries are attributable.
Here it is not so. Here, present applicant Ganesh is reported to be
armed with sword and he has put the same to use. Medical expert
PW7 deposed about noticing CLW on parietal region. Other medical
expert PW8 has deposed that injured Nilesh was operated for internal
bleeding in brain. Mere failure to examine surgeon who operated
injured Nilesh is not good ground for grant of bail.
CriAppln-3845-2023
7. Therefore, taking into consideration the role attributed to the
present applicant, the nature of arm he was equipped with and the
site of body where assault was carried out, this court does not deem it
fit case for grant of relief as prayed. Hence, I proceed to pass the
following order :
ORDER
The application is accordingly rejected.
[ABHAY S. WAGHWASE, J.]
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