Dismissed

Shivaji Rambhaurao Kharade and Anr. v. the State of Maharashtra through Pso, Kharangana, Tal and Distt Wardha

Bombay HC28 Feb 2013APPA/19/2013

Case brief

AI extract

What is this about?

In a murder appeal, the High Court rejected the applicants' claim to bail and suspension of life sentence. The court held that cogent evidence established common intention under Section 34 IPC and dismissed the application, yet allowed liberty to renew the prayer for bail after one year if the appeal is not heard. The earlier relied judgments were distinguished.

What did the court decide?

Application dismissed; liberty granted to renew prayer for bail pending hearing after one year.

Shivaji Rambhaurao Kharade and Anr. Vs the State… — Murder and Culpable Homicide | Bombay HC (2013)

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Cri.Appln.(APPA) No.19.2013. 1

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

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Criminal Application (APPA) No. 19/2013 in Criminal Appeal No. 397/2012.

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Shivaji Rambhauji Kharade and another vs. The State of Maharashtra, through P.S.O., Kharangna.

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Notes, Office Memoranda of

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Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders.

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Mr. S.P.Bhandarkar, Adv. For applicants. Mrs. K.S.Joshi, APP for respondent.

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CORAM: A.P.LAVANDE & A.B.CHAUDHARI,JJ DATE OF RESERVING ORDER : 25.2.2013 DATE OF PRONOUNCEMENT OF ORDER: 28.2.2013

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By this application, the applicants, who were accused nos. 3 and 4 in Sessions Trial No. 41/2009 before the Ad hoc Additional Sessions Judge -1 Wardha and have been convicted along with other two accused for the offence punishable under Section 302 read Section 34 of the Indian Penal Code, seek suspension of sentence and bail pending hearing and final disposal of the appeal. Both the applicants along with other two accused have been sentenced to undergo imprisonment for life and to pay fine of Rs. 1000/- each in default to suffer further rigorous

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Cri.Appln.(APPA) No.19.2013. 2

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imprisonment for one month.

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Both the applicants, along with other two accused, have been found guilty for the offence of assaulting and causing murder of one Babanrao Shinde on 31.8.2008 at about 1.00 p.m.. It was the case of the prosecution that all the four accused came to the house of one Sham Chaukane and dragged Babanrao in the courtyard. Accused no.2 Prashant assaulted him with a sword on head and remaining accused assaulted Babanrao by means of sticks and by kicks. Thereafter, all the accused ran away. The prosecution examined fourteen witnesses to prove the charge against all the accused. The learned trial Court primarily relied upon the evidence of three eye witnesses, P.W.1 Nitin Shinde, P.W. 3 Sham Chaukane and P.W.7 Mangala Shinde, wife of the deceased. The learned trial Court also relied upon the medical evidence tendered by P.W.5 Dr. Sanjay Gade, who had examined Babanrao at Public Health Centre, Kharangana on 31.8.2008 and also the evidence of P.W.11 Dr. Indrajit Khandekar, who had conducted post mortem on the dead body of Babanrao. The learned trial court had held that the evidence of all the eye witnesses was consistent about the assault by sword on head by accused no. 2 Prashant, assault by other three accused by sticks and the medical evidence tendered by P.W.5 and P.W.11 disclosed that deceased was having head injury of 3 inch length which was deep up to scalp caused by hard and

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Cri.Appln.(APPA) No.19.2013. 3

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sharp object. P.W.11Dr. Indrajit Khandekar, who had conducted post mortem on the dead body of Babanrao, categorically stated that injuries on the head were sufficient in the ordinary course of nature to cause death. Injuries were found on temporal parietal region of 5 x 5 cm in length. He further deposed all the injuries found, were ante mortem injuries and the deceased was subjected to multiple forceful impact prior to his death. He further opined that the nature of the injuries suggested that they were not possible by fall on the ground.

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Mr. Bhandarkar, learned counsel for the applicants submitted that there was no intention on the part of the applicants to commit murder of Babanrao Shinde. The applicants did not share common intention with the main accused Prashant, according to the prosecution, had assaulted the deceased with the sword on the head. The learned counsel further submitted that the applicants, at the most, can be held liable for their own acts i.e. assault on deceased by means of sticks and the offence of murder cannot be said to have been made out against the applicants by the prosecution. He further submitted that the applicants were on bail pending the trial and they have not misused the liberty and as such considering the facts and circumstances of the case, the applicants deserve to be released on bail pending hearing and final disposal of the appeal.

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Cri.Appln.(APPA) No.19.2013. 4

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Mr. Bhandarkar, placed reliance on the following

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Judgments.

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i) Jadu Yadav and others vs. State of Bihar AIR 1994 Supreme Court, 957.

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ii) Daiya Moshya Bhil and others vs. State of Maharashtra. AIR 1984 Supreme Court, 1717.

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iii) Rana Pratap and others vs. State of Haryana. AIR 1983 Supreme Court, 680.

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Per contra, Mrs. Joshi, learned APP submitted that the offence committed by all the accused is very serious and the evidence clearly disclosed that all the accused came together in the court-yard of Sham Chaukane and accused no.2 Prashant assaulted the deceased by sword and other three accused assaulted the deceased with sticks. Therefore, Mrs. Joshi submitted that common intention on the part of the present applicants to commit murder of deceased Babanrao, is clearly made out.

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We have carefully considered the rival submissions, perused record and Judgments relied upon.

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Cri.Appln.(APPA) No.19.2013. 5

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As stated above, the learned trial Court has relied upon the evidence of three eye witnesses, who have consistently deposed about the assault by accused no.2 Prashant on the head of the deceased by sword and by other accused with sticks. Their evidence gets corroboration from the medical evidence more particularly of P.W.11 Dr. Indrajit Khandekar, who opined that deceased was subjected to multiple forceful impact prior to his death and the injuries found on the deceased could not have been caused by fall on the ground.

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In view of the cogent evidence led by the prosecution referred to above, we are of the considered opinion that the prosecution has been able to establish that the applicants shared common intention with the main accused Prashant, who assaulted deceased with sword on head and caused his death on the same day. In terms of Section 34 of the Indian Penal Code, when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Considering the cogent evidence led by the prosecution, we are unable to accept the submission of Mr. Bhandarkar that the applicants, having used only sticks, did not share common intention with the main accused Prashant and as such are not liable for the offence of murder with

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Cri.Appln.(APPA) No.19.2013. 6

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the aid of Section 34. This is a case in which Section 34 is clearly attracted and, therefore, the offence punishable under Section 302 of the Indian Penal Code is made out against them.

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We have perused the Judgments relied upon by Mr. Bhandarkar. However, considering the evidence led by the prosecution in the present matter and having regard to the facts in those all three cases, in our opinion, the said Judgments do not advance the case of the applicants.

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Insofar as the submission made by Mr. Bhandarkar that the applicants were on bail pending trial and did not misuse the liberty during trial is concerned, it is well settled that the considerations for grant of bail pending trial and post conviction are different and mere fact that the applicants were on bail pending trial and they did not misuse liberty granted to them, by itself would not be sufficient to grant bail to the applicants. In our view, the offence committed by the applicants and other two accused is of serious nature and as such having regard to the gravity of the offence committed, we do not find any ground to suspend the substantive sentence imposed on the applicants and release them on bail. However, the applicants are granted liberty to renew their prayer for bail after the period of one year, in the event, appeal is not taken up for final hearing.

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Cri.Appln.(APPA) No.19.2013. 7

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With the above observations, the application stands

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dismissed.

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JUDGE JUDGE patle

Shivaji Rambhaurao Kharade and Anr. v. the State of Maharashtra through Pso, Kharangana, Tal and Distt Wardha

Case brief

What is this about?

What did the court decide?

Shivaji Rambhaurao Kharade and Anr. v. the State of Maharashtra through Pso, Kharangana, Tal and Distt Wardha

Case brief

What is this about?

What did the court decide?

What the court decided

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