1 crap5162.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 5162 OF 2010 IN CRIMINAL APPEAL NO. 242 OF 2010 1 Bhujang Gopalrao Pawar, age 23 years, occ. Driver, r/o Amdura, 2 Digambar Tukaram Pawar, age 21 years, occ. Agriculture, r/o Amdura, 3 Pramod Sambhaji Pawar, age 21 years, occ. Agriculture, r/o Amdura. 4 Ananda Tukaram Pawar, age 30 years, occ. Agriculture, r/o Punegaon 5 Baliram Parasram Puyed, age 48 years, occ. Agriculture, r/o Punegaon 6 Sanjay s/o Govindrao Puyed, age 26 years, occ. Agriculture, r/o Punegaon 7 Ranjeet Bhanudas Puyed,, age 25 years, occ. Agriculture, r/o Punegaon 2 crap5162.10 8 Shivaji Namdeo Puyed, age 50 years, occ. Agriculture, r/o Punegaon 9 Sambhaji Parasram Puyed, age 34 years, occ. Agriculture, r/o Punegaon 10 Sitaram Govindrao Puyed, age 24 years, occ. Agriculture, r/o Punegaon 11 Sambhaji Venkatrao Jadhav, age 27 years, occ. Agriculture, r/o Hippargaon, Tq. Biloli. ...Applicants (orig. accused nos. 2, 3,, 5, 9, 10, 11, 13, 14, 15, 22 & 23) VERSUS 1 The State of Maharashtra ...Respondent (orig. complainant) ..... Shri V.D.Salunke, advocate for the applicants Shri S.G.Nandedkar, A.P.P.for the respondent/State Shri R.L.Kute, advocate for intervenors ..... WITH 3 crap5162.10 CRIMINAL APPLICATION NO. 5180 OF 2010 IN CRIMINAL APPEAL NO. 259 OF 2010 1 Bhanudas s/o Motiram Puyad, age 60 years, occ. Agril., 2 Ravan s/o Mahadu Dhotre, age 40 years, occ. Agril., 3 Bali s/o Hari Dhotre, age 50 years, occ. Agril., 4 Shivaji s/o Shamrao Puyad, age 40 years, occ. Agril., 5 Subhash s/o Govindrao Puyad, age 30 years, occ. Agril., 6 Munjaji s/o Brahmaji Puyad, age 45 years, occ. Agril., 7 Dattatraya s/o Parasram Puyad, age 60 years, occ. Agril., 8 Shriram s/o Parasram Puyad, age 45 years, occ. Agril., 9 Balaji s/o Motiram Puyad, age 28 years, occ. Agril., 10 Chagan s/o Motiram Puyad, 4 crap5162.10 age 30 years, occ. Agril., All residents of Punegaon, Tq. And Dist. Nanded 11 Deelip s/o Bhimrao Pawar, age 26 years, occ. Agril. r/o Andura, Tq. Mukhed, District Nanded ,...Applicants (original accused nos. 20, 4, 7, 17, 16, 6, 21,1, 12, 18, 8) VERSUS The State of Maharashtra ...Respondent (orig. complainant) ..... Smt. Sadhana S. Jadhav, advocate for applicants Shri S.G.Nandedkar, A.P.P. for respondent Shri R.L.Kute, advocate for intervenors ..... CORAM : SHRIHARI P.DAVARE, J. DATE OF RESERVING THE ORDER : 25.04.2011 DATE OF PRONOUNCING THE ORDER : 28.04.2011 PER COURT : 1 Heard learned counsel for the parties. 5 crap5162.10 2 These are two Criminal Applications, preferred by the respective applicants, seeking bail, pending hearing and final disposal of respective Criminal Appeal Nos. 242 of 2010 and 259 of 2010, suspending the substantive sentences inflicted upon them therein, by way of judgment and order, dated 24.6.2010, rendered by the learned Additional Sessions Judge-2, Nanded, in Sessions Case No. 44 of 2007, wherein the applicants were convicted for the offences punishable under Section 307 r/w Section 149 of the Indian Penal Code and were sentenced to suffer Rigorous Imprisonment for seven years each and were also directed to pay fine of Rs.1,000/- each and in default of payment of fine to suffer further Rigorous Imprisonment for three months and set off was given to the applicants for the period of detention, if any, undergone by them. 3 In Criminal Application No. 5162 of 2010, the applicants are original accused nos. 2, 3, 5, 9, 10, 11, 13, 14, 15, 22 and 23; whereas in Criminal Application No. 5180 of 2010, the applicants are original accused nos. 20, 4, 7, 17, 16, 6, 21, 1, 12, 18 and 8. In fact, initially there were 27 accused in the afore said case, out of which two accused were juvenile in conflict with law, and therefore, their trial was separated and they were separately tried by the Juvenile 6 crap5162.10 Court; whereas two other accused persons, namely Keshav Tukaram Pawar and Maroti Motiram Puyed died before framing the charge, and hence, accused were renumbered while framing the charge. Even after framing the charge, Baburao alias Arjun Motiram Puyed also expired, and hence, proceeding against him was abated by the Trial Court against him on 14.6.2010, and ultimately, in all 22 accused persons, who are divided into afore said two Criminal Applications, as mentioned herein above, faced the trial and were convicted and sentenced as afore said. 4 The brief facts of the prosecution case can be summarised as under : It is the case of prosecution that on 11.8.2007 at about 3.30 p.m. Bhajan programmes were arranged in Maroti and Vitthal temples, situated at Punegaon and the complainant Sitaram Abarao Puyed was singing Bhajan (religious songs) in front of Vitthal temple on the loud-speaker along with Raosaheb Ramji Puyed, Nandaji Nagorao Puyed and Brahmaji Arjun Puyed. Bhajan programmes in both the temples were visible to each other. There was a cement road in between both the said temples. At this juncture, one white coloured Max Jeep, bearing No. MH-20/E-1186 arrived from Nanded side and stopped there and Maroti Motiram Puyed (Now expired), 7 crap5162.10 Arjun alias Baburao Puyed (Now expired), Motiram Puyed, Chagan Motiram Puyed-accused no. 18, Ranjit Bhanudas Puyed-accused no.13, Balaji Motiram Puyed-accused no.12, Sitaram Govindrao Puyed-accused no.22, Sambhaji Parasram Puyed-accused no.15, Dattaram Parasram Puyed-accused no.21 and Sanjay Govindrao Puyed, all r/o Punegaon alighted from the said jeep in front of Maroti temple, who were armed with swords in their hands and started assaulting to the companions of the complainant. Hence, people listening Bhajans started running helter skelter. Therefore, the complainant along with Raosaheb Ramji Puyed, Vitthal Maroti, Vishwanath Sambhaji, Venkati Arjun and Gajanan Abaji proceeded towards Maroti temple, but the assailants rushed towards them and started assaulting them. Accused no.10 Baliram Parasram assaulted mother of complainant, namely Jijabai Abarao Puyed by stone and thereby she fell down on the road. Hence, the complainant and his brother rushed towards their mother, but Maroti Motiram Puyed assaulted the brother of complainant, namely PW7 Gajanan on his head by sword, and thereby PW7 Gajanan fell down and Maroti assaulted him on his hand and legs. Moreover, when Prakash Venkatrao Puyed rushed to save PW7 Gajanan, he was assaulted by Balaji Motiram-accused no.12 and Shivaji Shamrao- accused no.17 by sword. At this juncture, PW8 Vishwanath Sambhaji and Ramji Arjuna were also assaulted by accused no.15- 8 crap5162.10 Sambhaji Parasram and his brother-in-law by sword. Hence, the complainant ran away for his life and got hidden himself in one of the houses of the village. However, the afore said assailants pelted stones and kicked on the door and shouted slogans, like ‘Har Har Mahadeo’. After some time, they went away. The complainant thereafter took his mother Jijabai, uncle Ramji Patil, cousin brother Vishwanath Patil and Prakash and brother Gajanan to the hospital in a jeep, i.e. mini door auto rickshaw. Moreover, the complainant came to know at the hospital that Baliram Maroti Puyed i.e. PW6 was also assaulted by the afore said assailants on his head and legs and threw him on the road and he was admitted in hospital by his cousin brother Kashinath and Bhagwan Venkatrao and his leg was required to be amputated later on. 5 It is also the case of prosecution that about seven persons sustained grievous and simple injuries, namely Jijabai, Baliram, Gajanan, Prakash, Vishwanath, Ramji and Nandaji during the occurrence of the afore said incident and all the afore said accused persons assaulted them along with other 50 to 60 persons in order to prevent them from contesting the Grampanchayat election. Hence, the complainant filed the complaint against the afore said accused persons in police station. After completion of the investigation, charge sheet came to be filed against the accused persons and 9 crap5162.10 since the case was exclusively triable by the Court of Sessions, it was committed to the said court. Charge was framed against the accused persons, but the accused pleaded not guilty and claimed to be tried. 6 To substantiate the prosecution case, it examined in as much as 13 witnesses. The defence of the accused was that there was rush at the place of Bhajan programmes and on account of payment of money to the Bhajan singers, disputes cropped up which result in stone pelting and public started assaulting each other on account of old enmity, and as there was more than 400 to 500 persons, who assaulted whom could not be ascertained, as well as the witnesses are of criminal nature and they have implicated the accused persons in the case falsely taking the advantage of free fight amongst the public. 7 After considering the oral, documentary and medical evidence on record, the Trial Court convicted and sentenced the accused persons, as afore stated, by way of impugned judgment and order, dated 24.6.2000. Being aggrieved and dissatisfied by the said judgment and order, the accused persons preferred two appeals, i.e. Criminal Appeal No. 242 of 2010 and Criminal Appeal No. 259 of 2010 and questioned the said conviction and sentence and the said 10 crap5162.10 appeals have been admitted by this court and pending hearing and final disposal of said appeals, the applicants have preferred present two Criminal Applications seeking bail, as mentioned herein above. 8 Shri V.D.Salunke, learned counsel for the applicants in Criminal Application No. 5162 of 2010 canvassed that there are no allegations of overt act during the occurrence of the incident against the applicant nos. 1-Bhujang Gopalrao Pawar, 2-Digambar Tukaram Pawar, 3-Pramod Sambhaji Pawar, 4-Ananda Tukaram Pawar, 6- Sanjay Govindrao Puyed and 10-Sitaram Govindrao Puyed and there are bald allegations against applicant nos. 5-Baliram Parasram Puyed, 7-Ranjeet Bhanudas Puyed and 8-Shivaji Namdeo Puyed, and therefore, submitted that they are required to be enlarged on bail during the pendency of appeals. As regards applicant nos. 9- Sambhaji Parasram Puyed and 11-Sambhaji Venkatrao Jadhav, it is submitted that they have been implicated in this case falsely. 9 According to said learned counsel, all the applicants in the said application were on bail during the pendency of trial and there is no grievance of the respondent that the applicants misused the said liberty for the substantial period of almost four years and no subsequent single offence has been alleged against the applicants. 11 crap5162.10 10 Learned counsel for the applicants placed reliance on the judicial pronouncement in the case of Bhagwan Rama Shinde Gosai and others vs State of Gujarat, reported at AIR 1999 SC 1859, and also submitted that the sentences inflicted upon the applicants by the Trial Court is for the fixed period of 7 years Rigorous Imprisonment, which is a short term sentence and in the said context, learned counsel for the applicants also placed reliance on the judicial pronouncement in the case of Kiran Kumar vs State of M.P., reported at 2001 AIR SCW 5130. It is also canvassed that the applicant have filed Criminal Appeal No. 242 of 2010 and questioned the conviction and sentence imposed upon them therein and said appeal has been already admitted by this court and there is no likelihood that the said appeal would be taken up for final hearing in near future, and therefore also, the applicants deserve to be enlarged on bail during the pendency of the said appeal. 11 Smt. Sadhana S. Jadhav, learned counsel for the applicants appearing in Criminal Application No. 5180 of 2010, argued that the alleged incident occurred suddenly at the time of festival of Nag Panchami, and there was no common object of the applicants to cause death of the victims, but the object was only to cause grievous hurt to the victims. In the said context, learned counsel for the applicants further argued that even the Trial Court 12 crap5162.10 has not awarded separate sentences to the applicants under Sections 147 and 148 of the Indian Penal Code, meaning thereby, each of the applicants was not armed with the weapon, and therefore, submitted that since there are mere allegations of presence of the applicants on the spot, but no overt act has been attributed against the applicant nos. 1-Bhanudas Motiram Puyad, 2- Ravan Mahadu Dhotre, 6-Munjaji Brahmaji Puyad, 11-Deelip Bhimrao Pawar, 5-Subhash Govindrao Puyad and 7-Dattatraya @ Dattaram Parasram Puyad, during the occurrence of alleged incident, and therefore, they are required to be enlarged on bail. 12 As regards the other applicants in Criminal Application No. 5180 of 2010, learned counsel for the applicants submitted that there is no injury on any vital part of the body of victims and the leg of Baliram Maroti Puyed was amputated in hospital later on, but same was not mitilated. It is also submitted that the sentences awarded to the applicants by the Trial Court are for fixed period of short term i.e. 7 years Rigorous Imprisonment, and relied on above referred both the judgments (supra). According to learned counsel, the applicants have challenged the convictions and sentences inflicted upon them by same by filing Criminal Appeal No. 259 of 2010 and same has been admitted by this court and there is no likelihood and possibility of taking up the said appeal for hearing in near future. It is 13 crap5162.10 further submitted by the said learned counsel for the applicants that all the applicants were on bail during the pendency of trial and they have not misused the liberty granted to them during the pendency of trial and there is no grievance of the respondent in that respect, and therefore also, they are required to be enlarged on bail during the pendency of Criminal Appeal No. 259 of 2010. It is further canvassed that the applicants are in jail for the period of last 13 months and there is no likelihood of taking up the appeal for final hearing in near future, as afore said, and therefore also, it is urged that the applicants be enlarged on bail pending hearing and final disposal of appeal filed by them. 13 Learned Additional Public Prosecutor appearing for the respondent/State opposed both the Criminal Applications and submitted that there was police Bandobast at the time of occurrence of afore said incident i.e. in front of Hanuman temple in Punegaon, Takuka and District Nanded at about 4.30 p.m. on 11.8.2005, but still the afore said incident of assault upon the injured persons occurred in presence of police personnel, which speaks volumes for itself. 14 Learned Additional Public Prosecutor also submitted that both the sides i.e. complainant party and the accused are on inimical terms with each other. Moreover, there are counter cases against 14 crap5162.10 each other. So also, it is canvassed that the village is vertically divided in two fractions and there is bitterness amongst two groups for various reasons including the political reason and old enmity. Hence, there is bad blood between them. It is also submitted that some of the members of the complainant side were convicted for the serious offences punishable under Section 302 of the Indian Penal Code in Sessions case No. 123 of 2006 and the appeal filed by the said convicts is pending before this court and even bail application preferred by some of them was rejected by the Division bench of this court. 15 Besides, learned Additional Public Prosecutor also submitted that there are about eight eye witnesses to the occurrence of the afore said incident. It is further canvassed that if the applicants are enlarged on bail, there is danger to the lives of persons and families belonging to the complainant side, and hence, learned Additional Public Prosecutor urged that both the present Criminal Applications be rejected. 16 Shri R.L.Kute, learned counsel appearing for the intervenors also opposed the present Criminal Applications and submitted that some of the victims sustained grievous injuries, namely injured Jijabai lost her right eye; whereas right leg of Baliram 15 crap5162.10 Maroti Puyed was amputated due to occurrence of the afore said incident. It is also submitted by the learned counsel for the intervenors that there are about eight injured persons, who sustained grievous injuries and some of those injuries were on vital parts of their bodies during the occurrence of the incident. It is also canvassed that the applicants used dangerous weapons, like sword while assaulting the injured persons at the time of occurrence of the afore said incident. It is also submitted by learned counsel that the applicants and their family members are under police protection even today also and when the present applicants were on bail, they were threatening some of the witnesses, and therefore, complaints were lodged against some of the present applicants from time to time. Moreover, there are various offences against some of the applicants and they have criminal antecedents and background, and hence, they do not deserve grant of bail. It is further submitted that the applicants are dangerous persons and earlier bail application preferred by them was rejected by this court by order, dated 3.9.2010 and the applicants are habitual criminals and they are on inimical terms with the complainant side and apprehension is posed that if they are enlarged on bail, their lives and the lives of their family members would be in danger. Hence, learned counsel for the intervenors urged that present Criminal Applications deserve to be rejected. 16 crap5162.10 17 I have perused the record placed before me for the purpose of consideration of the present applications and also considered the submissions advanced by the learned counsel for the parties anxiously and I find that the applicants are the convicts of serious offences, wherein the injured persons, namely Jijabai, Baliram, Gajanan and Prakash sustained grievous injuries on their vital parts of the bodies and it appears that they were assaulted by deadly weapons, such as sword. Moreover, it also appears that the injured Jijabai lost her right eye, since she was assaulted by stone; whereas injured Baliram Maorti Puyed was attacked on his right leg during the occurrence of the incident, which resulted in amputation later on in the hospital. So also, injured Prakash sustained grievous hurt due to sword on his head, left hand and right leg; whereas injured Ramji sustained injury on his left ankle and left thumb by sword, and also injured Nandaji sustained injury on his left thumb by sword, as well as injured Vishwanath sustained injuries on his head and left ear by sword. 18 Accordingly, I notice that there is strong prima facie case against the applicants, who were convicted for the serious offences punishable under Section 307 r/w Section 149 of the Indian Penal Code. Needless to say, it would not be proper to reappreciate the 17 crap5162.10 evidence at this stage, which exercise would be done at the time of final hearing of the appeals. 19 Besides that, it is pointed out that there are eight eye witnesses to the occurrence of the incident and the Trial Court has scrutinized, assessed and appreciated the evidence and thereafter convicted and sentenced the applicants. Moreover, the earlier bail application preferred by the applicants was not allowed by this court for the reasons stated in order dated 3.9.2010. 20 Moreover, prima facie, there appears to be bitter animosity between the two groups in the village i.e. complainant’s side and the applicants herein and already three accused involved in the Sessions case under the present appeals were eliminated, as well as some of the members of complainant side also have been convicted for the offences punishable under Section 302 r/w Section 149 of the Indian Penal Code and their appeal is pending before this court and even bail application preferred by some of them appears to have been rejected by this court. Accordingly, the atmosphere in the village appears to be volatile and my attention was invited to the fact that even police protection has been given to some of the persons on complainant’s side and their family members and same is in existence in the said village as on today also. It is also submitted that 18 crap5162.10 the complaints have been registered against some of the applicants for the threats given to the witnesses when they were on bail during the pendency of trial, as well as there appears to be criminal background and antecedents in respect of applicants herein. Moreover, sight cannot be lost of the aspect that the members of complainant side and their family members are living under threat with the police protection, as well as apprehension posed by them to their lives, if the applicants are enlarged on bail, cannot be ignored. 21 As regards the observations made in the judicial pronouncements as aforesaid, in the case of Bhagwan Rama Shinde Gosai and others vs State of Gujarat, reported at AIR 1999 SC 1859, and more particularly, in the case of Kiran Kumar vs State of M.P., reported at 2001 AIR SCW 5130, the Apex Court held that every endeavour should be made to have the appeal posted for early hearing and disposal. It is also observed that if the short term sentence is allowed to run out during the pendency of the appeal, the appeal itself will become, for all practical purposes, infructuous so far as the appellant is concerned. However, at the same time, the Apex Court further observed that it does not mean that the Appellate Court should suspend the sentence, if its consequences would be danger to the society or any other similar difficulties. Hence, it is explicitly clear that ordinarily the Appellate Court shall make serious 19 crap5162.10 endeavour to ensure that expeditious hearing of the appeal is made, in order to avoid the apprehension that the appeal itself would become infructuous due to running of the sentence. However, at the same time, the Appellate Court is required to decline grant of relief regarding suspension of substantive sentence as and when it is found that the consequence thereof would be danger to the society or any other similar difficulties. As mentioned herein above, the applicant party and complainant side are on inimical terms with each other and the village is vertically divided into two fractions and even there is police protection given to some of the members of the complainant party and their families even today also and the apprehension is posed that if the applicants are enlarged on bail, there would be danger to the persons belonging to complainant party and their families, and therefore, having the comprehensive view of the matter, it would be hazardous and dangerous to enlarge the applicants on bail, pending hearing and final disposal of the respective appeals, suspending their substantive sentences. 22 Moreover, it is also seen that while disposing of the earlier bail application, preferred by the applicants, by this court, by order, dated 3.9.2010, this court directed the office to prepare paper books, so as to ensure speedy disposal of the said appeals. It is reported that accordingly paper books have been prepared in the said 20 crap5162.10 respective appeals. Moreover, the data of the pending jail appeals in this court, was called for from the office and it is reported that hardly few i.e. 8-9 jail appeals are pending for final hearing. Hence, for the reasons stated herein above, both the present Criminal Applications deserve to be rejected, but simultaneously, hearing of the respective Criminal Appeals is required to be expedited. 23 In the result, Criminal Application No.5162 of 2010 and Criminal Application No. 5180 of 2010 stand dismissed. However, hearing of Criminal Appeal No. 242 of 2010 and Criminal Appeal No. 259 of 2010 stands expedited. (SHRIHARI P. DAVARE), JUDGE. dbm/crap5162.10