Akash Alias Bablu Pandharinath Dambale v. State Of Maharashtra
SANDEEP CHITNIS Date: 2023.07.26 14:09:25 +0530 NISHA SANDEEP CHITNIS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL INTERIM APPLICATION NO.1341 OF 2023 IN CRIMINAL APPEAL NO.422 OF 2023 Akash Alias Bablu Pandharinath Dambale ... Applicant
Versus
State of Maharashtra
...Respondent
WITH CRIMINAL INTERIM APPLICATION NO.2061 OF 2023 IN CRIMINAL APPEAL NO.422 OF 2023 Ramesh Bhimrao Gaikwad ... Intervener
IN THE MATTER BETWEEN:-
Akash Alias Bablu Pandharinath Dambale ... Applicant
Versus
State of Maharashtra
...Respondent
Mr. Pratik Kalantri a/w Mr. Shyam Bobade, for the Applicant in IA/1341/2023.
Ms. Lisa Das i/b Jay & Co., for the Intervener in IA/2061/2023. Ms. S. S. Kaushik, A.P.P for the Respondent - State. CORAM : REVATI MOHITE DERE & GAURI GODSE, JJ.
DATE : 21st JULY 2023 P.C. :
1.
Heard learned counsel for the parties.
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2.
The applicant vide judgment and order dated 14th February 2023 passed by the learned Additional Session Judge, Nashik in Session Case No. 198 of 2018 alongwith other co-accused has been convicted and sentenced as under:
- for the offence punishable under Section 302 r/w 149 of the Indian Penal Code to suffer imprisonment of life and to pay fine of Rs. 5,000/- each in default, to suffer simple imprisonment for six months;
- for the offence punishable under Section 143 of the Indian Penal Code to suffer rigorous imprisonment for three months and to pay fine of Rs. 500/- each in default, to suffer simple imprisonment for fifteen days;
- for the offence punishable under Section 148 of the Indian Penal Code to suffer rigorous imprisonment for two years and to pay fine of Rs. 1,500/- each in default, to suffer simple imprisonment for two months;
All the sentences were directed to run concurrently. 2/9
3.
Perused the papers, and, in particular the evidence of the eye-witnesses i.e. PW1 - Ramesh Gaikwad, PW8 - Dagu Shelke, PW9Santosh Kadam and PW10 - Chetan. 4.
According to the prosecution, the incident took place on 27th December 2017 at about 10:30 pm to 11:00 pm. PW1 - Ramesh, is the first informant and also an eye witness to the incident. He has stated that he was out with Devidas (deceased) on the said day; that at about 10:30 p.m. they had pavbhaji and after having pavbhaji he, Dinesh (deceased) and Devidas (deceased) went on a Pulsar motorcycle to drop Devidas at Rajivnagar Zopadpatti; that at about 11:00 p.m, when they reached the tar road outside the house of Devidas, and got down from the motorcycle, they saw one rickshaw in front of them; that from the said rickshaw, Ravi Nikalje, Sachin Nikalje, Krushna Shinde, Nitin Pandit, Deepak Vavar, Bablu Dambale (applicant) who were sitting in the rickshaw stepped out; that the said persons came near Devidas and there was a quarrel between them and Devidas, on account of some old dispute. PW1 - 3/9
Ramesh has further stated that Sachin Nikalje and Krushna Shinde ran towards the zopadpatti and after going inside the zopadpatti, Sachin Nikalje returned with a sword like weapon in his hand and Krushna with a sickle(Koyta); that Sachin Nikalje assaulted Devidas with the sword like weapon on his neck, pursuant to which Devidas fell down on the ground; that he (PW1 - Ramesh) and Dinesh tried to lift him, however, at that time, Ravi Nikalje pulled the sword like weapon from Sachin's hand and stabbed Dinesh (deceased), pursuant to which Dinesh also fell on the ground. According to PW1 - Ramesh, after witnessing the assault, he started running towards the old Indira Nagar police station.
He has stated that Ravi Nikalje having sword like weapon and others having stones in their hand started chasing him (PW1 - Ramesh); that whilst running he fell on the ground, resulting in an injury on his left leg and palm; that he again got up and went to the spot, were Dinesh and Devidas were being assaulted. He has stated that pursuant to the said incident Dinesh and Devidas succumbed to their injuries.
any overt act to the applicant, except for stating that applicant was alongwith other co-accused and that he too got down with the other accused from the rickshaw.
5.
As far as PW8 - Dagu is concerned, he has stated that the incident took place on 27th December 2017; that on hearing noise on the road, he saw 5-6 people assaulting his nephew Dinesh; that Ravi Nikalje had held his nephew by his hair and was assaulting his nephew with a chopper on his neck; and that his brother Devidas was lying in blood pool, at a distance of 50-60 feet. As far as PW8 - Dagu is concerned, he has also not attributed any overt act to the applicant. It also appears that the police have recorded his statement, after four days of the incident.
6.
As far as PW9 - Santosh is concerned, his evidence shows that on the day and time of the incident, he was at a distance of 100125 feet; that there was some quarrel going on; that he saw 5-6 persons assaulting his cousin Dinesh and Devidas with a knife. He has 5/9
further stated that Sachin Nikalje assaulted Devidas in his abdomen with a knife and that Deepak and Bablu had held Devidas; that when Devidas came ahead to save Dinesh, Ravi Nikalje pulled out the knife from Sachin's hand and assaulted Dinesh on his back and neck; that Dinesh tried to run, however, he too fell down and that Krushna Shinde and Nitin Pandit held him, after which Ravi Nikalje assaulted Dinesh with a knife on his throat. PW10's - Chetan's evidence is similar to that of PW9 - Santosh. 7.
Learned counsel for the applicant states that the applicant be released on bail on the ground of parity. He submits that similarly placed co-accused - Nitin Pandit, to whom a similar role has been attributed i.e. of holding one of the deceased, his sentence has been suspended and he has been enlarged on bail by this Court, vide order dated 28th June 2023. He further submits that the applicant was on bail pending trial and has not misused or abused the liberty granted to him.
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8.
Learned APP does not dispute the fact that the role of the applicant is similar to that of co-accused - Nitin Pandit, whose sentence has been suspended and who has been enlarged on bail by this Court, vide order dated 28th June 2023.
9.
Learned counsel for Intervener vehemently opposes the interim application. She submits that the applicant was present at the spot alongwith other accused and had participated in the assault, pursuant to which Dinesh and Devidas, succumbed to their injuries. 10.
We have perused the order dated 28th June 2023, enlarging Nitin Pandit, a co-accused in the said case on bail. The role of the applicant is similar to that of co-accused - Nitin Pandit, whose sentence has been suspended and who has been enlarged on bail. It is not in dispute that the applicant was on bail pending trial and that post his conviction, he was taken into custody. It is also not in dispute that whilst on bail, the applicant has not abused or misused his liberty or the conditions of bail. Admittedly, apart from the occular evidence 7/9
as noted aforesaid, there is no other circumstantial evidence on record, as against the applicant i.e. recovery of any weapon or blood stained clothes at his instance.
11.
Considering what is stated aforesaid and in particular, considering the role of the applicant and the fact, that the applicant was on bail pending trial, the application is allowed and the applicant's sentence is suspended and he is enlarged on bail, pending the hearing and final disposal of the aforesaid appeal, on the following terms and conditions:-
ORDER
i) The applicant be enlarged on bail on furnishing P.R.Bond in the sum of Rs.25,000/- with one or two sureties in the like amount; ii) The applicant shall report to the trial Court, once in three months on the day/date specified by the trial Court, till the appeal is finally disposed of;
iii) The applicant shall keep the trial Court informed of his current address and mobile contact number and/or change of 8/9
residence or mobile details, if any, from time to time; iv) If there are two consecutive defaults in appearing before the trial Court, the learned Judge shall make a report to the High Court and the prosecution would be at liberty to file an application seeking cancellation of bail.
12.
The Application is allowed in the aforesaid terms and is accordingly disposed of.
13.
In view of the aforesaid, the Intervention Application, being Interim Application No.2061 of 2023, does not survive and the same is also disposed of.
All concerned to act on the authenticated copy of this order. GAURI GODSE, J.
REVATI MOHITE DERE, J.
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