Partly allowed

Navnath Bhikuji Salunkhe and Anr. v. the State of Maharashtra

Bombay HC5 Mar 2013APPA/10/2013

Case brief

AI extract

What is this about?

This court partially allowed a criminal application seeking suspension of sentences and bail for two appellants convicted of murder. Finding that the conviction of one appellant relied primarily on inadmissible material, the court suspended his sentence and released him on bail. However, the application for the other appellant was rejected as some other evidence existed against him.

What did the court decide?

Sentence of Navnath Bhikuji Salunkhe suspended and he released on bail in Rs. 20,000/- with one surety in like amount pending appeal. Application of Ambadas Talathi rejected.

Navnath Bhikuji Salunkhe and Anr. Vs the State of… — Criminal Trial and Appeal | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.10 of 2013 IN CRIMINAL APPEAL No.597 of 2012

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NAVNATH BHIKUJI SALUNKHE & ANR ... APPLICANTS versus THE STATE OF MAHARASHTRA ... RESPONDENT

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Mr.S.R.Chitnis, Sr. Advocate i/b Mr.Ujjwal Agandsurve, Advocate for the applicants.

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Mrs.M.M. Deshmukh, APP for the State.

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CORAM : P.V.HARDAS AND

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ABHAY M. THIPSAY, JJ.

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ORDER RESERVED: 22^nd FEBRUARY 2013. ORDER PRONOUNCED ON : 5^th MARCH, 2013

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ORAL ORDER :- ( PER A.M.THIPSAY, J )

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1 The applicants are the original accused nos.9 and 11 respectively in Sessions Case No.60 of 2006 tried by the Adhoc Addl. Sessions Judge, Solapur. There were totally 11 accused in the said case, including the applicants. After holding the trial, the learned Adhoc Addl.Sessions Judge found all the accused persons, except the original accused no.2 guilty of offences punishable under

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sections 120B of the IPC, 365 of the IPC, 368 IPC, 302 IPC and 201 of the IPC read with section 149 of the IPC. The learned Adhoc Addl.Sessions Judge imposed a sentence of Imprisonment for Life upon the applicants and the other accused, with respect to the offence punishable under section 302 IPC read with section 149 of the IPC. He also imposed various sentences of Imprisonment for different terms with respect to the other offences, and stipulated that all the sentences would run concurrently.

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2 The appeal filed by the applicants, challenging their conviction and the sentences imposed upon them has already been admitted. By the present application, the applicants pray that the substantive sentences imposed upon them be suspended, pending the hearing and final disposal of the appeal, and that the applicants be released on bail.

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3 We have heard Mr.S.R. Chitnis, learned Senior Advocate for the applicants. We have heard Mrs.M.M. Deshmukh, the learned APP for the State. With the assistance of the learned counsel, we have gone through the relevant evidence, and the impugned judgment.

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4 The case of the prosecution, as was put forth before the Trial Court was to the effect that the original accused no.1 - Revansidha and the original accused no.2 were related to Rajesh (the deceased). There were property disputes between them, and that therefore, the original accused nos.1 and 2 had hired the other 9 accused to kill Rajesh. Pursuant to the conspiracy to kill Rajesh, the applicants and the original accused nos.3, 4 and 10 actually killed the said Rajesh. That a sum of Rs.3,00,000/- was paid to the applicants, and the accused nos.3, 4 and 10 through the original accused nos.5 to 8.

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5 Mr.S.R. Chitnis, learned Senior Advocate appearing for the applicants submitted that there was no evidence before the Trial Court to hold that applicants, or any of them, guilty of the alleged offences. He submitted that the Trial Court has arrived at a finding of the guilt of the applicants by taking into consideration inadmissible material. He submitted that the case of the present applicants is on par with the original Accused nos.5 to 8, who have also filed a separate Appeal challenging their conviction, and the sentences imposed upon them (Criminal Appeal No.432 of 2012),

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which is also pending before this Court. He submitted that the sentences imposed upon them those accused have been suspended by this Court, pending the hearing and final disposal of the said appeal, and that those accused have been released on bail by an order dated 6 August 2012. (Criminal Application No.749 of 2012 in Criminal Appeal No.432 of 2012). He submits that the reasoning which led to the suspension of sentence imposed upon those accused squarely applies to the applicants also.

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6 It is not in dispute that there were no eye witnesses to the incident. On perusal of the relevant part of the judgment of the Trial Court (paragraph no.142), we find that the Trial Court placed reliance on the contents of the memorandum panchnama in respect of the disclosure made by the Accused no.3 - Basavraj Desai. The Trial Court was of the view that the panchnama was the most crucial and important panchnama which threw light on the actual facts. The Trial Court also noted that the defence had objected ' tooth and nail' to the exhibition of the said panchnama and commented that it was but natural as, if the panchnama would be read in evidence, that would go totally against the accused persons.

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Thereafter, the Trial Court proceeded to discuss the statements

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attributed to the original accused no.3 in the said panchnama. It is on reading the contents of the panchnama that the Trial Court formed its opinion as to how and in what manner Rajesh was attacked and killed.

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7 The observations made by the Trial Court in paragraph no.145 of the judgment indicate that it was on the basis of the statements appearing in the record of the panchnama at Exhibit-127 that the Trial Court arrived at its findings about the involvement of the applicants and other accused in the murder of Rajesh.

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8 We have also observed that the Trial Court also relied upon an unexhibited panchnama and based its finding on the contents thereof, after exhibiting it at the time of writing of the judgment. (paragraph no.146)

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9 Prima facie, we are satisfied that the Trial Court has arrived at its findings by taking into consideration inadmissible material.

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10 We have therefore, called upon the learned APP to point out if there was any other evidence against any of the applicants. The learned APP has pointed out that, so far as the applicant no.2 (original accused no.11) is concerned, there is some other evidence against him in the nature of recovery of a 'sattur which is said to be one of the weapons used in the assault.

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11 We have gone through the relevant evidence in that regard, and also the relevant part of the impugned judgment. We find that there is evidence to indicate that the applicant no.2 Ambadas Talathi had made a disclosure statement pursuant to which a ' sattur ' was recovered under a panchnama. The Chemical Analyser's report shows that the blade of the ' sattur ' was stained with human blood. This evidence has been believed by the Trial Court.

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12 A meticulous analysis of the evidence and its reevaluation cannot be done at this stage. The same can be done only at the time of final hearing of the appeal.

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13 In our view, it is not possible to hold that there was no

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evidence against the applicant no.2 to show his involvement in the alleged offence. At this stage, we are not inclined to analyze and to come to a conclusion about its sufficiency or otherwise for sustaining the conviction of the applicant no.2. We are, therefore, not inclined to suspend the sentences imposed upon him.

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14 With respect to the applicant no.1, however, since prima facie, there is no evidence to connect him with the alleged offence, and since we find that the conclusion about his guilt has been arrived at by taking into consideration inadmissible evidence, it would be appropriate to suspend the sentences imposed upon him, till the appeal is finally heard and disposed of.

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15 In the result, the application, so far as it relates to the applicant no.2 Ambadas Talathi (original accused no.11), is rejected.

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16 Pending the hearing and final disposal of the appeal, the substantive sentences imposed upon the applicant no.1 – Navnath Bhikuji Salunkhe (original accused no.9), shall stand

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suspended and the applicant no.1 – Navnath shall be released on bail in the sum of Rs.20,000/- with one surety in like amount, on

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the condition that he shall report to the Trial Court on the First Monday of every calendar month, till the disposal of the appeal.

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17 Should the Court be closed on any given Monday, the applicant no.1 shall report to the Trial Court on the next working day.

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18 Application is disposed of in the aforesaid terms.

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( ABHAY M.THIPSAY,J )

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(P.V. HARDAS, J)

Navnath Bhikuji Salunkhe and Anr. v. the State of Maharashtra

Case brief

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What did the court decide?

Navnath Bhikuji Salunkhe and Anr. v. the State of Maharashtra

Case brief

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