Naru Bhala Barela And Another v. The State Of Maharashtra

{1} CRI APPLN 4027 OF 2022

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD 11 CRIMINAL APPLICATION NO.4027 OF 2022 IN APPEAL/492/2017 1.

Naru S/o. Bhala Barela Age: 49 years, Occu.: Agriculture 2.

Panga @ Bhawani S/o. Naru Barela Age: Major, Occu.: Agriculture Both Resident of Tidya, Tal.: Raver, Dist.: Jalgaon, Maharashtra, (Presently lodged at Nashik Central Prison, Nashik Road, Nashik) ..Applicants (Ori. Accused No.1 & 2)

VERSUS

.

The State of Maharashtra Through, the Police Inspector, Investigating Ofcer, Raver Police Station, Tal.: Raver, Dist.: Jalgaon.

(C.R.No.159/2014, Raver Police Station, Raver, Dist.: Jalgaon) ..Respondent ...

Advocate for Applicants : Mr.Abhaykumar Dilip Ostwal APP for Respondent : Mr.R.V.Dasalkar ...

CORAM : SMT. VIBHA KANKANWADI & ABHAY S. WAGHWASE, JJ.

DATE : 16th January, 2023 ORDER :- .

Heard learned Advocate for the applicants and learned APP for the respondent-State.

{2} CRI APPLN 4027 OF 2022 2.

Present application has been fled for suspension of substantive sentence imposed upon the applicants in Sessions Case No.11 of 2015 by the learned Additional Sessions Judge, Bhusawal, District Jalgaon on 13-10-2015. After holding the applicants guilty of ofence under Sections 302, 323, 325 read with 34 of the Indian Penal Code (IPC), applicants have been sentenced to sufer life imprisonment for the ofence punishable under Section 302 read with 34 of IPC, they have been further sentenced to sufer rigorous imprisonment for two years for the ofence punishable under Section 325 read with 34 of IPC and they have also been sentenced to sufer rigorous imprisonment for one year for the ofence punishable under Section 323 read with 34 of IPC.

3.

With the help of learned Advocate for the applicants and learned APP for the respondent-State, we have gone through the entire evidence. Deceased is one Ramzan Tadvi. His brothers are the eye witnesses. The post mortem report shows only one injury in column No.17 as contusion on occipital region size 4x3 cm. As regards the internal examination is concerned, it was found that there was haematoma under the scalp on occipital region size 5 x 4 cm and there was no fracture to the skull. The probable cause of death is "Intracranial hemorrhage". As

{3} CRI APPLN 4027 OF 2022 regards the prosecution evidence is concerned, it is stated by the eye witness that applicant No.2 Panga had given the said blow to Ramzan. It is stated that he had given blow with the backside of blade of axe on the backside of Ramzan's head when Ramzan was caught-hold by applicant No.1 - Naru and a juvenile in conflict with law, who is the another son of applicant No.1. With this evidence, it is then required to be seen as to whether there was intention to kill when there is a single blow and when the weapon like axe having sharp age was in the hand why it would have been chosen that the blow would be from the backside of the axe. Evidence will have to be scanned from that angle. 4.

Another fact that has been pointed out on behalf of the applicants is that Ramzan had gone in front of the house of accused persons. He stated that he had gone there to ask as to why they have taken gum from Salai tree, but there is evidence on record which would show that even accused persons have received injuries and under said circumstance, it is required to be seen whether the prosecution has explained the injuries on the person of the accused persons. Secondly, whether the defence in respect of private defence was available to the accused and whether if at all they had exceeded their right of private defence , who were the aggressors. All these points are involved

{4} CRI APPLN 4027 OF 2022 in this appeal. Though, it appears that the applicants were never released on bail throughout the trial yet the evidence will have to be scanned from this angle also. Under such circumstances, a case is made out to suspend the sentence imposed on the applicants and to release them on bail.

5.

For the aforesaid reasons, following order is passed :

ORDER

i) Application stands allowed and disposed of.

ii) The substantive sentence imposed against the applicants in Sessions Case No.11 of 2015 by learned Additional Sessions Judge, Bhusawal, District Jalgaon, on 13-10-2015 stands suspended till the hearing and disposal of Criminal Appeal No.492 of 2017.

iii) The applicants (i) Naru S/o Bhala Barela and (ii) Panga @ Bhawani S/o. Naru Barela be released on P.R. Bond of Rs.30,000/- each with two solvent sureties of Rs.15,000/- each.

iv) The applicants shall not commit any criminal activity. v) The applicants shall remain present before the learned trial Judge once in six months, till fnal hearing and disposal of the appeal, commencing from the date they tender bail papers and thereafter, the trial Judge to fx dates for their subsequent appearance.

{5} CRI APPLN 4027 OF 2022 vi) In case of two consecutive defaults on the part of the applicants to remain present before the trial Court, the trial Court to inform this Court about the same and in that eventuality, the prosecution would be at liberty to fle an application for cancellation of the bail granted to the applicants.

vii) Bail before the trial Court.

( ABHAY S. WAGHWASE ) ( SMT. VIBHA KANKANWADI ) JUDGE JUDGE SPT