Vijay Raghunath Shinde v. State Of Maharashtra

Digitally signed by UDAY SHIVAJI JAGTAP Date:

2024.09.10 10:51:39 +0530 UDAY SHIVAJI JAGTAP Uday S. Jagtap

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION INTERIM APPLICATION NO. 2486 OF 2024 IN CRIMINAL APPEAL NO. 726 OF 2024 Vijay Raghunath Shinde .. Applicant Vs.

The State of Maharashtra .. Respondent ....

Mr. Veerdhawal Deshmukh a/w Ms. Keral Mehta for the applicant Ms. Gauri S. Rao, APP for the respondent - State ....

CORAM : REVATI MOHITE DERE & PRITHVIRAJ K. CHAVAN, J.J.

DATE : 6th SEPTEMBER, 2024.

P.C.

1.

Heard learned Counsel for the parties.

2.

By this application, the applicant seeks suspension of his sentence and enlargement on bail pending the hearing and final disposal of his appeal.

3.

The applicant vide Judgment and Order dated 24th January 2023 has been convicted alongwith other co-accused as under: - For the offence punishable under section 302 read with 34 of the Indian Penal Code, to suffer rigorous imprisonment for life and to pay fine of Rs. 10,000/- each, in default to suffer rigorous imprisonment for three months. - For the offence punishable under section 201 read with 34 of the Indian Penal Code, to suffer rigorous imprisonment for three years and to pay fine of Rs. 10,000/- each.

- For the offence punishable under section 364 read with 34 of the Indian Penal Code, to suffer rigorous imprisonment for ten years and to pay fine of Rs. 10,000/- each, in default to suffer rigorous imprisonment for three months.

- For the offence punishable under section 120-B read with 34 of the Indian Penal Code, to suffer rigorous imprisonment of two years and to pay fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for three months. - For the offence punishable under section 392 read with 34 of the Indian Penal Code, to suffer rigorous imprisonment for ten years and fine of Rs. 10,000/-, in

default to suffer rigorous imprisonment for three months. All the aforesaid sentences were directed to run concurrently.

4.

Perused the papers. Admittedly, the prosecution case rests on circumstantial evidence. According to the prosecution, the incident took place on 12th January 2011 at about 5.30 p.m. It is alleged that Nitin Padavale (deceased) returned home from his agricultural land and at about 6.30 p.m. again went out and thereafter, did not return home. Pursuant thereto, Nitin's brother lodged a missing complaint on 14th January 2011. It is further alleged that on 21st January 2011, one police Patil informed the police about a dead body, lying near Waghzara, Kolhapur. The dead body was found lying in a valley at a depth of about 50 feet. It was found in a decomposed condition with no head attached to the body. Pursuant thereto, C.R. No. 7 of 2011 came to be registered with Shahuwadi Police Station, Kolhapur alleging offences punishable under Sections 302, 201 of the Indian Penal Code. During the course of investigation, applicant and other co-accused came to be arrested. It is the prosecution case that accused no. 1-Ravi Mane had a love affair

with accused no. 7-Leena Padavle and that accused no. 1-Ravi Mane had hired accused nos. 5-Deelip Vyankatesh Dudhale and accused no. 6-Amit Shinde to kill the deceased. It is alleged that pursuant thereto, there was a meeting organized in a hotel on 12th January 2011, which was attended by accused nos. 1-Ravi Ramesh Mane, 2-Vijay Raghunath Shinde (Applicant), 3- Kishor Dodappa Mane, 5-Deelip Vyankatesh Dudhale, 6-Amit Shinde and 9-Satish Bhimsing Vadar. According to the prosecution, accused nos. 2-Vijay Raghunath Shinde, 3-Kishor Dodappa Mane, 4-Aakash @ Akash Sitaram Waghmare, 5-Deelip Vynaktesh Dudhale and 6-Amit Shinde brought Nitin at Warnanagar Kodoli, Borpadale Phata, Bambawade, Malkapur Road to Waghzara jungle; thereafter, accused nos. 2, 3, 5 and 6 took Nitin to the said jungle; that accused nos.

2, 3 and 5 held Nitin by his leg and accused no. 6 held Nitin's head. It is alleged that accused no. 6-Amit Shinde severed Nitin's head from his body and killed him and thereafter, the body was thrown in a valley. It is the prosecution case, that when the aforesaid accused reached Amrut Nagari Phata, post the incident, accused no.1Ravi Ramesh Mane came alongwith accused no.

Sabana Kuchkoravi (on accused no. 1's motor cycle), and that accused no. 6 showed Nitin's head to accused nos. 1-Ravi Ramesh Mane and others and the applicant. Thereafter, Nitin's head and all his articles were disposed of, by throwing the same in Warna river.

5.

As noted earlier, the prosecution case rests on circumstantial evidence. There are no circumstances which the prosecution has presented as against the applicant, either in the form of recovery, last seen, extra judicial confession or recovery of blood stained clothes on C.D.R's. Learned APP when confronted with the same, does not dispute the same. It prima facie appears that what has been relied upon by the learned Judge to convict the applicant, are the contents of the memorandum statements of the accused recorded under Section 27 of the Indian Evidence Act, which are clearly inadmissible in law. It is not in dispute, that the applicant was on bail pending trial and that he has not misused the conditions of bail. 6.

It appears that similarly placed co-accused Manesh S.

Kuchkoravi's sentence has been suspended and he is enlarged on bail vide order dated 24.07.2023. The evidence against Manesh Sabanna Kuchkoravi, who has been released on bail, is identical to that of the present accused - Vijay Raghunath Shinde. 7.

Considering the aforesaid evidence on record qua the applicant and the fact, that the applicant was on bail pending the trial, the application is allowed and the applicant's sentence is suspended and he is enlarged on bail on the following terms and conditions:-

O R D E R

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 his 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 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. 8.

The application is allowed in the aforesaid terms and is accordingly disposed of.

9.

All concerned to act on the authenticated copy of this order.

(PRITHVIRAJ K. CHAVAN, J.) (REVATI MOHITE DERE, J.)