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Order - Status 7: FARAD CONTINUATION SHEET NO.: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPLICATION NO.2092 OF 2006 IN WRIT PETITION NO.9059 OF 2005 ------------------------------------:---------------------------------- Office Notes, Office Memoranda of : Court's or Judge's orders. coram, appearances, Court's orders : or directions and Registrar's : orders. : ------------------------------------:----------------------------------- Ms Bhalekar,i/b Mr U.P.Warunjikar, for the respondent. CORAM: D.B.BHOSALE,J. DATED: 24.08.2006 P.C. : The applicant has prayed for fixed date of hearing of the main writ petition. The writ petition has yet not admitted. It is open for the applicant to seek circulation for admission of the writ petition. The prayer made in the civil application cannot be granted. It is disposed of as such. (D.B.BHOSALE,J.)

Order - Status 6: FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO. 357 OF 2015 Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders Mr. Nitin Sejpal, advocate for the applicant. Mr. S.H. Yadav, APP for State. CORAM :SMT. SADHANA S. JADHAV , J DATE :JULY 8, 2015 P.C.: 1 Heard the learned Counsel for the applicant. Issue notice to respondents. Learned APP waives service for respondent No. 5. Notice returnable on 5/8/2015. Private service permitted. ( SMT. SADHANA S. JADHAV , J) ..... Talwalkar 1/1

Order - Status 13: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION CR. APPLICATION NO. 357 OF 2015 Srushti Satish Patel ....Applicant V/S Satish Manilal Pateland Ors ....Respondent CORAM : N.W. SAMBRE, J DATE : 19th December, 2016 P.C. : Due to paucity of time Stand over to 20/01/2017. ( FOR REGISTRAR JUDICIAL - I )

Order - Status 18: 34.APPLN.357.15.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.357 OF 2015 Srushti Satish Patel … Applicant V/s. The State of Maharashtra & Ors. … Respondents Smt. Pooja Sejpal, i/by Nitin Sejpal for the Applicant. Mr. S.S. Hulke, APP for the Applicant – State. CORAM : A.S.GADKARI, J. DATE : 15th JANUARY 2018 P.C.: This is an application for cancellation of anticipatory bail granted to respondent No.1 by the learned Additional Sessions Judge, City Civil & Sessions Court, Gr.Mumbai in ABA/1077/2015 by its Order dated 21.05.2015. Learned APP on instructions submitted that in the present case after completion of investigation, police have submitted chargesheet on 24.08.2017. In view of the decision of this Court in the case of Priyanka Pakvasa V/s. Sameer Pakvasa and Anr. in Criminal Application No.733/2014 in ABA No.1785/2014 dated 25.01.2016 the present application for cancellation of bail on merits after filing of chargesheet does not survive and is accordingly disposed off. (A.S.GADKARI, J.)

Order - Status 4: Chitra Sonawane IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.2155 OF 2023 Vijay Kisan Waghmare ] Petitioner. Vs. State of Maharashtra & Ors. ] Respondents. Ms Sahana Manjesh for the petitioner. Ms MH Mhatre,APP for State. CORAM: Nitin W. Sambre & R.N.Laddha, JJ. DATE : 5th July, 2023. Learned APP seeks time so as to enable him to place on record categorization of the petitioner, who is already convicted for an offence punishable under Sections 302 and 307 of the IPC, and is ordered to undergo life imprisonment. .... Stand over to 18 th August , 2023 . [R.N.Laddha, J.] [Nitin W. Sambre, J.] Page No. 1 of 1 5 July 2023.

Order - Status 6: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.2155 OF 2023 Vijay Kisan Waghmare ... Petitioner. Vs. The State of Maharashtra & Ors. ... Respondents. ……. Ms Sahana Manjesh for the Petitioner. Ms MH Mhatre, APP for State. .…... CORAM: Nitin W. Sambre & R.N.Laddha, JJ. DATE : 18 August, 2023. .... P.C.: Leave to amend. Amendment be carried out within 4 weeks. Stand over to 3 rd October, 2023. [R.N.Laddha, J.] [Nitin W.Sambre, J.] 18 Aug 2023.

Order - Status 8: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2155 OF 2023 Vijay Kisan Waghmare …..Petitioner Vs. The State Of Maharashtra & Ors. …..Respondents None for the Petitioner. Mrs. M.H. Mhatre APP, for the Respondent-State. CORAM : A. S. GADKARI AND SHARMILA U. DESHMUKH, JJ. DATE : 3rd OCTOBER, 2023. P.C.:- Learned APP on instructions submitted that, by an Order dated 17th August, 2023 passed by the Competent Authority, the Petitioner has been placed in category 4(b) of 2010 Guidelines. As none appears for the Petitioner, stand over to 25th October, 2023. (SHARMILA U. DESHMUKH, J.) (A.S. GADKARI, J.)

Order - Status 10: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2155 OF 2023 Vijay Kisan Waghmare .. Petitioner Vs. State of Maharashtra & Ors. .. Respondents Ms. Sahana Manjesh, for the Petitioner. Mr. H. J. Dedhia, APP for the Respondent-State. CORAM : A. S. GADKARI AND SHYAM C. CHANDAK, JJ. DATE : 25th OCTOBER, 2023. P. C.:- Learned APP seeks time to file reply of Respondent No. 2 to the Petition. At his request, stand over to 14th December, 2023. (SHYAM C. CHANDAK J.) (A. S. GADKARI, J.)

Order - Status 14: MANDIRA MILIND SALGAONKAR IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2155 OF 2023 … ... Vijay Kisan Waghmare .. Petitioner Versus The State of Maharashtra & Ors. .. Respondents Ms.Sahana Manjesh for the Petitioner. Mr.J.P.Yagnik, A.P.P. for the State/Respondent. CORAM: BHARATI DANGRE & MANJUSHA DESHPANDE, JJ. DATED : 30 th JULY, 2024 P.C:- The Petitioner, a convict, undergoing life imprisonment on being convicted by the Additional Sessions Judge, Omerga, District Osmanabad, for committing the offences punishable under Sections 302 and 307 of IPC, has been categorised by the State Government under 4(b) of the 2010 guidelines. The counsel for the Petitioner raised a grievance about incorrect categorization, as according to her, the offence committed by the Petitioner would be entitled to be categorised in a category, where murder is committed without premeditation in an individual capacity i.e. 4(a) of the guidelines of premature release of prisoners serving life sentence dated 15/03/2010. At this juncture, we must take a note that category 4(b) reads to the following effect :- "4(b) Murder committed with premeditation or a person having criminal history". Category 4(a) has prescribed the period of imprisonment to be undergone as 20 years, whereas category 4(b) prescribe the punishment to be undergone as 22 years. The learned counsel for the Petitioner has placed reliance upon the decision of this Court in the case of Prayagbai wd/o Sakharam Kamble Vs. State of Maharashtra & Anr. 1 , but on perusal of the said decision, the fact itself would reveal the background in which the incident had occurred, when some altercation took place between Shobha, Sarubai-her mother-in-law and Prayagbai, sisterin-law and this prompted the petitioner Prayagbai to pour kerosene on Shobha and Sarubai setting her on fire. On alarm being raised by Shobha, neighbours came to her rescue. This offence was categorised as without premeditation and we have no difficulty, as regards the conclusion that has been reached by the Division Bench. However, we must take into account the facts of the present case and from perusal of the judgment by the Sessions Court, which is upheld by the High Court, the case of the prosecution is to the effect that Nandabai Waghmare alongwith her deceased brother was sleeping on a cot and at around 12 midnight, the accused reached there and he gave blows with koyta to her brother Sudam on his forehead, above right eye and also to her and injured both of them. Sudam succumbed to the injuries on 26/01/2007 i.e. 7 days after the incident. We made serious attempt to appreciate the argument of the learned counsel, but we remain unpersuaded. The term 'premeditation' specifically indicate a crime planned 1 1999(3) Mh.L.J. 762 in advance and when we ascertained the facts of the case, it is evident from the prosecution case that the accused, who is brother of husband of Nandabai demanded Rs.80/- to her on 20/01/2007, which she paid and after taking meals, they went to sleep. In the mid-night, the accused reached there being armed with koyta and mounted the assault. The prosecution witnesses deposed to that effect and PW 10, who examined Sudam, had noticed two injuries on him. He was, thereafter, referred to Civil Hospital, Solapur for further treatment and the postmortem report refers to heamatoma present under scalp in right frontal and temporo parital region, multiple fracture of interior and middle cranial forsa on right side. It also record presence of subdural haematoma along the tentorium cerebelli and posterior falx. In the wake of the above, we are not satisfied with the submission advanced on behalf of the Petitioner, that he ought to have been categorised under 4(a) of the guidelines and, according to us, the State Government in the wake of the decision of the Additional Sessions Judge, which is upheld by this Court, that the crime was committed with premeditation, has rightly categorised him in category 4(b). Upholding the said order, the Writ Petition is dismissed. (MANJUSHA DESHPANDE,J.) (BHARATI DANGRE, J.) M.M.Salgaonkar

Order - Status 7: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 251 OF 2005 Vilas... Bhimrao Dhotre. Appellant. Versus. State... of Maharashtra & ors. Respondent. Shri D.J.Deshmukh for the Appellant. CORAM : ABHAY S. OKA, J. DATED : 23rd March, 2005. P.C.: Heard the learned Advocate appearing for the Appellant/original Plaintiff. Admittedly the Appellant was allowed to use the property in question for a limited period of 11 months. The said period has expired long back. The property of which the Appellant was put in possession under the agreement belongs to the Government and the Government has power to resume the land. Both the Courts below have held that the Appellant has no right to continue in possession after a period of 11 months. No substantial question of law arises. The Second Appeal is dismissed with no order as to costs. Judge.

Order - Status 4: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 54 OF 2021 Pagur Yogesh Desai … Appellant V/s. The State of Maharashtra & Anr. … Respondents Mr.Niranjan Mundargi a/w. Mr.Vikram Sutaria for Appellant. Mr.S.S. Hulke, A.P.P. for Respondent No.1-State. CORAM : A.S. GADKARI, J. DATE : 22nd January 2021. P.C. : This is an Appeal under Section 14A of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 2015 (for short, "the S.C. & S.T. Act ). The appellant is apprehending arrest in CR No.77 of 2018 dated 01/12/2018 registered with Pali Police Station, Raigad for the offence punishable under Section 3(1) F of the S.C. & S.T. Act. Issue notice to the respondent No.2, returnable on 22nd February 2021. In addition to Court notice, the appellant is also permitted to serve the respondent No.2 through private notice and after the said respondent No.2 is duly served, to file an affidavit-of-service in the Registry 1/2 osk 8-Cri Appeal-54-2021.odt before the next date. Perusal of documents annexed to the appeal indicates that, in Petition for Special Leave to Appeal (Criminal) No. 1731 of 2019 preferred by the appellant herein against the Judgment and Order dated 5th February 2019 passed by the Co-ordinate Bench of this Court in Criminal Appeal No. 02 of 2019, the Hon'ble Supreme Court has observed that, a closure report was filed by the Investigating Officer and accordingly, the Hon'ble Supreme Court dismissed the said Petition. Learned A.P.P. seeks time to take instructions. In view of the above, as and by way of interim relief, till the next date appellant is protected by pre-arrest bail. Hence, following order :- (i) In the event of arrest in CR No.77 of 2018 dated 01/12/2018 registered with Pali Police Station, Raigad, the appellant shall be released on bail on his furnishing PR bond in the sum of Rs.15,000/-, with one or two local sureties in the like amount. (ii) Appellant shall not tamper with the evidence and/ or interfere with the process of investigation. (iii) All the concerned to act on the basis of the authenticated copy of this Order. Stand over to 22nd February 2021.

Order - Status 5: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 54 OF 2021 Pagur Yogesh Desai ….Appellant. Vs. The State Of Maharashtra & Anr. ….Respondents. Mr. Niranjan Mundargi i/by V.R. Sutaria for the Appellant. Mr. A.R. Patil, APP for the Respondent No.1-State. Mr. Chintaman Shankar Pawar, Respondent No.2 present in person. CORAM : A. S. GADKARI, J. DATE : 22nd FEBRUARY, 2021. P.C.:- Respondent No.2 is personally present in Court and through the learned APP submitted that, he intends to appoint an Advocate to represent him. At his request, stand over to 10th March, 2021. Interim relief granted earlier, to continue till the next date. (A.S. GADKARI, J.) Sanjiv S. Mashalkar Digitally signed by Sanjiv S. Mashalkar Date: 2021.02.23 18:19:06 +0530

Order - Status 8: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION CR. APPEAL NO. 54 OF 2021 Pagur Yogesh Desai ....APPELLANT V/S The State Of Maharashtra And Anr ....RESPONDENT CORAM : HON'BLE SHRI JUSTICE A.S. GADKARI J DATE : 10th March, 2021 P.C. : Balance Daily Board cannot be taken up today on account of paucity of time. Stand over to 09/04/2021 . Ad-interim relief or interim relief, if any, granted earlier will continue to operate till next date. ( FOR REGISTRAR JUDICIAL - I )

Order - Status 11: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 54 OF 2021 …...... …...... Pagur Yogesh Desai …Appellant Versus The State of Maharashtra and anr. …Respondents Mr. Niranjan Mundargi i/b Vikram R. Sutaria for the Appellant. Mr. A.R. Kapadnis, APP for the State. Mr. Ganesh Bhujbal for Respondent No.2. CORAM : N.R. BORKAR, J. DATE : 19 SEPTEMBER 2022. P.C. :- This appeal is filed under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("SCST Act" for short) against an order passed by learned Additional Sessions Judge, Mangaon District-Raigad dated 19 December 2018 in Criminal Bail Application No. 238 of 2018. By the order impugned, the trial Court rejected the anticipatory bail application filed by the present appellant, who is accused in C.R. No. 77 of 2018 registered at Pali Police Station, Raigad for the offences punishable under Section 3(1)(f) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. On 22 January 2021, this Court passed the following order: "This is an Appeal under Section 14A of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 2015 (for short, "the S.C.& S.T. Act ). The appellant is apprehending arrest in CR No.77 of 2018 dated 01/12/2018 registered with Pali Police Station, Raigad for the offence punishable under Section 3(1) F of the S.C. & S.T. Act. Issue notice to the respondent No.2, returnable on 22nd February 2021. In addition to Court notice, the appellant is also permitted to serve the respondent No.2 through private notice and after the said respondent No.2 is duly served, to file an affidavit-of-service in the Registry before the next date. Perusal of documents annexed to the appeal indicates that, in Petition for Special Leave to Appeal (Criminal) No. 1731 of 2019 preferred by the appellant herein against the Judgment and Order dated 5th February 2019passed by the Co-ordinate Bench of this Court in Criminal Appeal No. 02 of2019, the Hon'ble Supreme Court has observed that, a closure report was filed by the Investigating Officer and accordingly, the Hon'ble Supreme Court dismissed the said Petition. Learned A.P.P. seeks time to take instructions. In view of the above, as and by way of interim relief, till the next date appellant is protected by prearrest bail. Hence, following order :- In the event of arrest in CR No.77 of 2018 $(i)$ dated 01/12/2018 registered with Pali Police Station, Raigad, the appellant shall be released on bail on his furnishing PR bond in the sum of Rs.15,000/-,with one or two local sureties in the like amount. Appellant shall not tamper with the evidence $(ii)$ and/or interfere with the process of investigation. All the concerned to act on the basis of the $(iii)$ authenticated copy of this Order. Stand over to 22 nd February 2021. " 6. $4.$ The learned Counsel for the Appellant submits that during the pendency of the present appeal, the State has filed the charge sheet. In view of the filing of charge sheet, instead of entertaining the $5.$ present appeal it would be appropriate to direct the appellants to file regular bail application before the competent Court and to continue the order passed by this Court dated 22 January 2021 till the decision of the competent Court in the application for regular bail. The Appellants are directed to file application for regular bail 6. within a period of three weeks from today. If such bail application is filed, the concerned Court shall decide it on its own merits without being influenced by the order passed by this Court dated 22 January 2021. The interim anticipatory bail granted to the appellants by order dated 22 January2021 shall continue to operate till the decision of the competent Court in the application for regular bail. The Criminal Appeal is disposed of in aforesaid terms. Needless to mention that the concerned Court before passing an order on regular bail application of appellants, shall grant an opportunity of hearing to Respondent No. 2. ( N.R. BORKAR, J. )

Order - Status 4: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.370 OF 2004 WITH CRIMINAL APPEAL NO. 1440 OF 2003. CRIMINAL APPEAL NO. 370 OF 2004 Sunil Shridhar Ghadashi ..Appellant. V/s. The State of Maharashtra ..Respondent. CRIMINAL APPEAL NO. 1440 OF 2003. Chandrakant @ Shekhar Yashwant Pawar ..Appellant. V/s. The State of Maharashtra ..Respondent. Mr. Arfan Sait, Appointed Advocate for the appellant. Mr. D.S. Mhaispurkar, A.P.P. for the Respondent/State CORAM : S.B. MHASE & ANOOP V.MOHTA, JJ. DATE : 22ND NOVEMBER, 2004. P.C. . Heard. Delay condoned. It is brought to our notice at the time of admission of the appeals, that the original accused No.1 have preferred appeal bearing No. 748/2000 and the said appeal has been dismissed by this Court on merit. In these circumstances, we have admitted this appeal to the extent of accused Nos. 2 and 3 only. Admit. Mr. Mhaispurkar, A.P.P. waives the service of notice on behalf of respondents. S.O. to one week. . Parties concerned to act on a simple copy of this order, duly authenticated by the Registry of this Court. [ANOOP V. MOHTA, J.] [ S.B.MHASE, J.]

Order - Status 6: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 978 OF 2001 Budhia Vesta Halpati ...Appellant Versus State of Maharashtra ...Respondent ..... None for the appellant as well as the respondent. CORAM: SMT. V.K. TAHILRAMANI, J. DATED: 12TH AUGUST, 2005 P. C.:- ..... The appellant has filed this appeal through jail. The matter pertains to the year 2001. Though the record and proceedings has been called for and five reminders and one D.O.letter has been sent, yet the record and proceedings has not been received. Hence, the Sessions Judge, Daman, is directed to look into the matter and furnish an explanation as to why the record and proceedings has not been sent to this Court till today. S.O. eight weeks. *****

Order - Status 9: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPEAL NO. 978 OF 2001 Budhia Vesta Halpati ..Appellant V/s The State of Maharashtra ..Respondent. Mr.M.S. Raje,h/f Mrs. Pranali Kakade, Advocate appointed for the appellant. Mr. D.P. Adsule, APP for the State. CORAM : J.H. BHATIA, J. DATE : 28TH MARCH, 2007. P.C. . Mr. M. S. Raje, Advocate makes a statement on behalf of Mrs.Kakade, Advocate, who was appointed to look after the present appeal on behalf of the accused/appellant, who is in jail, that Mrs.Kakade, Advocate is not feeling well for quit some time and therefore, this matter be adjourned. It appears that the accused is in jail since 1997 and he was awarded R.I. for seven years for the offence punishable under section 304(1) of I.P.C.. If he is still in jail he must have completed about 10 years in custody. In such circumstances, I find that it will not be desirable to adjourn the matter. If the learned advocate is not in a position to attend the matter, some other advocate may be requested and appointed for this purpose. Therefore, Mr. Shriram Shirsat, Advocate is hereby appointed to appear and conduct the matter on behalf of the appellant. Copies be supplied to him immediately. (J.H. BHATIA, J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPEAL NO. 978 OF 2001 Budhia Vesta Halpati ..Appellant V/s The State of Maharashtra ..Respondent. Mr. Shriram Shirsat, Advocate appointed for the appellant. Mr. D.P. Adsule, APP for the State. CORAM : J.H. BHATIA, J. DATE : 28TH MARCH, 2007. P.C. . In this appeal, the accused/appellant was convicted for the offence punishable under section 304(1) of IPC and was sentenced to undergo R.I. for seven years and to pay fine of Rs.1000/- and in default to pay fine to undergo further R.I. for six months. He was taken in custody on 6/7/1997 and was never granted bail. Against this conviction and sentence, he had preferred this appeal though jail on 3/11/2000 and it appears that the appeal was registered on 11th December, 2001. However, this appeal was never placed before the Court even for admission before 13th March, 2007, when the matter was directed to be placed today i.e. 28/3/2007 for admission. Today learned A.P.P. Mr. Adsule informs, on the basis of information received from jail, that accused has undergone complete sentence and was released from jail on 2nd January, 2003. In view of the above circumstances, the Registrar (Judicial) shall obtain the explanation of the concerned officers, as to why this appeal was not listed for admission for a period of more than five years. S.O. one week. (J.H. BHATIA, J.)

Order - Status 11: IN THE HIGH COURT OF JUDICATURE AT BOMBAY SIDE JURISDICTION CRIMINAL APPEAL NO.978 OF 2001 Budhia Vesta Halpati ...Appellant. V/s. The State of Maharashtra ...Respondent. None for the Appellant. Shri D.P.Adsule, APP for the Respondent/State. CORAM: J.H.BHATIA, J. DATE : 4th April, 2007. P.C.: As noted in the earlier order dated 28th March, 2007, the accused appellant has preferred this appeal through jail on 3-11-2000 and it was registered on 11th December, 2001 but it was never placed before the Court for admission prior to 13th March, 2007. Now the jail authorities have informed that after undergoing the complete sentence, the appellant was released from jail on 2nd January, 2003 and thus, due to the delays on the part of our office, the appeal has become infructuous almost for all purposes. The explanation was called from the office about the delays. I am not satisfied about the same. Registrar General is hereby directed to hold appropriate enquiry and take action against the concerned staff members for the delays. Even though the accused has been released after undergoing sentence, the appeal will have to be heard as he has challenged the conviction. The appeal is admitted and it be listed for final hearing alongwith the appeals in which the accused are in jail. (J.H.Bhatia,J.)

Order - Status 15: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 978 OF 2001 BUDHIA VESTA MALPATI ..APPELLANT V/S THE STATE OF MAHARASHTRA ..RESPONDENT MR.SHRIRAM SHIRSAT FOR APPELLANT. MRS. M.M. DESHMUKH, APP FOR RESPONDENT. CORAM : J.H. BHATIA, J. DATE : 12TH JUNE, 2007. JUDGMENT The Accused/Appellant preferred this Appeal through jail against his conviction for offence punishable under section 304 Part I of IPC and sentence to undergo R.I. for 7 yeaars and to pay a fine of Rs. 1000/- and in default to pay fine, to undergo further R.I. for 6 months. At the outset it should be noted down that the accused was convicted by the Sessions Court, Daman on 28-5-1998 and was sent to jail to undergo sentence. He filed this appeal through jail on 3-11-2000 and the Appeal came to be registered in 2001 but unfortunately it was never placed before the court for admission prior to 13th March 2007. After the matter was placed for admission the Appeal was admitted and the Appeal is fixed for final hearing. Meanwhile, the report was called and it was revealed that on 2nd January 2003 the accused was released on bail after undergoing complete sentence including the sentence in default to pay fine. Thus hearing and disposal of the Appeal is a mere formality required to be completed under law. Prosecution case in brief, is that the deceased Pravin was son of unfortunate accused/appellant. They were living together at Bhramanfalia, Bhimpore, Nani Daman. The incident of this case occurred on 28-6-1997 at about 2.30 p.m. Some quarrel took place between the accused and his son and due to that quarrel, the accused lifted a brick and gave some blows to his son with the said brick, due to which he sustained bleeding injuries on the neck and collapsed. P.W. 2 Kashiben Harjibhai, who is the sister of the accused, had come to the spot at the time of the incident to give food to deceased Pravin and she : 2 : saw the accused assaulting Pravin and shouted. : 3 : Hearing her shouts P.W. 3 Ranchhod Karia, who is the neighbour, also came to the spot of incident. He also saw the accused person at the spot with a brick in his hand and his son lying on the ground. The accused, thereafter, ran away from the spot. According to the prosecution, the accused went to the house of P.W. 4 Ramubhai Patel, who was the sarpanch of the village but Ramubhai Patel himself was not present and the accused left a message with the daughter of P.W. 4 Ramubhai Patel that his son Pravin was not well. Leaving this message, he went away. P.W. 4 Ramubhai Patel returned home at about 9 p.m. and got the message and he went to the house of the accused and found that Pravin was lying dead. Then he gave information to the police of Daman Police Station, where his report was reduced to writing. On the basis of that report, Crime No. 107/97 was registered at Police Station Daman under section 302 of IPC against the accused. On the next day inquest panchnama and spot panchnama were conducted. The post mortem examination was carried out. Statements of certain witnesses were recorded. The accused was : 4 : absconding and was arrested on 6-1-1997. On the basis of the information given by him, the blood stained brick was recovered from the house of the accused. After investigation the charge sheet was filed. Charge was framed against the accused under section 302 of IPC. He pleaded not guilty. According to him, he was falsely implicated because of election politics of the village. In all 5 witnesses were examined by the prosecution. After hearing both sides the learned trial court sentenced the accused as stated above. Out of the 5 witnesses examined by the prosecution, P.W. 2 Kashiben Harjibhai is the sister of the accused and she claims to be the eye witness of the incident. P.W. 3 Ranchhod Karia is the neighbour and according to him, he came to the spot after hearing the cries of P.W. 2 Kashiben. There is no other witness of the actual incident. As per evidence of P.W. 2 Kashiben on 28-6-1997 at about 2.30 p.m. she was returning home after completing her work and at that time, she went to the house of the deceased for giving : 5 : him food. In the beginning of the examination-in-chief she deposed that when she went to the house of Pravin, she noticed that Pravin was dead. However immediately thereafter she stated that at about 2.30 p.m. she heard the sound of quarrel of the accused with his son. Her own house is just behind the house of the accused. She immediately went to the house of the accused. When she reached there the quarrel was still going on between the accused and Pravin. Her evidence reveals that accused was holding a brick in his right hand. She shouted and at the same time P.W. 3 Ranchhod also came there. Accused was present at the spot even when Ranchhod came there. Ranchod caught the accused but Kashiben asked him not to hold him and keep him free. Thereafter the accused ran away from the spot. She also deposed that she had seen the accused giving blows to the deceased with a brick due to which Pravin had suffered bleeding injury and he died. P.W. 3 Ranchhod deposed that at about 2.30 p.m. he was present at his house. At that time he heard the cries and immediately he rushed to the house of the accused on hearing the cries. When he reached there, he saw the accused with : 6 : a brick in his hand and Pravin lying dead on the ground. According to P.W. 3 Ranchhod, he asked Kashiben as to what had happened and Kashiben replied that her brother Budhia had killed Pravin. He also deposed that he caught hold of the accused but Kashiben asked him to leave the accused and therefore he left him and then the accused ran away from the spot. It may be noted that in the cross examination it was sugggested to P.W. 2 Kashiben, that she had rushed to the spot after death of Pravin. She admitted the suggestion. However it was also suggested to her that accused Budhia and his son were quarrelling when she was inside her house. She admitted that suggestion also. Thereafter she stated that she has deposed in her examination in chief whatever she had seen. It may be noted that P.W. 2 Kashiben is the sister of the accused and therefore she must be in a dilemma to some extent whether to depose or not, as she knew that her evidence against her brother could lead to sentence of imprisonment or imprisonment for life to him. In view of these circumstances, she tried to support the accused to some extent but then she : 7 : maintained that she had seen the incident after going to the spot. In view of these circumstances certain admissions here and there may be ignored. Her evidence clearly goes to prove that after completing her work she had gone to her house. She heard sound of quarrel of accused Budhia with deceased Pravin. After hearing the noise, she went to the house of accused Budhia and thereafter she saw the accused giving blow Pravin with a brick in his hand, due to which Pravin suffered a bleeding injury and fell on the ground and died. She cried. On hearing the cries, P.W. 3 Ranchhod came there and saw that the accused was present with brick in his right hand and body of Pravin was lying on the ground. He enquired from Kashiben as to what had happened and Kashiben told him that her brother Budhia had killed Pravin. He tried to catch hold of the accused but due to intervention of P.W. 2 Kashiben he left the accused and then accused ran away from the spot. I do not find any reason to disbelieve this part of the evidence of these two witnesses. During the cross examination of P.W. 3 : 8 : Ranchhod, an attempt was made to show that because of political reasons he was giving false evidence against the accused. In the cross examination he admitted that during the last election he was in one political party and Budhia was in opposite party. On the basis of this admission, it was argued that because of the political rivalry he must have been falsely implicated the accused. However, there is nothing on record to show that accused Budhia himself was contesting any election. Merely because he was one of the workers of the opposite party, P.W. 3 Ranchhod could not falsely implicate him in the case of murder. It should not be forgotten that P.W. 3 Ranchhod is also the neighbour of the accused and that there is nothing to show that there was enemity between them. P.W. 2 Kashiben is the real sister of the accused. She has also deposed that P.W. 3 Ranchod had come to the spot immediately after the incident and this provides corroboration to his testimony. Therefore, I am unable to accept the plea raised on behalf of the accused that because of political reasons he is falsely implicated in this case. : 9 : The record reveals that inquest panchnama Exhibit 7 and Spot panchnama Exhibit 8 were admitted in evidence on behalf of the accused, without examining any witness. The spot of the incident was house of the accused. The inquest panchnama reveals 3 injuries on the body of Pravin. The evidence of P.W. 1 Dr. Siddharth Rathod reveals that on 29-6-1997 at about mid night he had conducted autopsy on the dead body of Pravin Budhia and he found the following injuries. 1 : Bruise over right cheek bone over maxilliary side 1.1/2" in diameter with laceration with underline bone. 2: C.L.W. size 2 cm. x 1/4 cm. deep over Left mostoid region. 3 : Clean incise wound 1/2 cm, deep over left side of neck behind the left ear and 1 inch below inch below the mostoid bone with large soft tissue swelling of 4 to 5 inches in diameter surrounding the clean incised looking wound with softening of the whole area. : 10 : On opening the the body he observed as folllows:- . Fracture over the uppermost cervical spine over left side involving 2nd and 3rd cervical vertebra which was showing commutated fracture of side wings of 2nd and 3rd vertabrael processes. . Fracture of spinal cannal of 2nd and 3rd vertabra. There was also anterior lateral subluxation with fracture on last vertabra. . All these injuries resulted in lacerations and compression of respective spinal cord and 2nd and 3rd vertabral canal. Also there was fracture of skull at the base. This fracture was corresponding to external injury No. 3. He deposed that these injuries could be caused by a blunt object like a brick and cause of death was due to injury to the spinal cord at 1st, 2nd and 3rd cervical spine level. He accordingly issued the post mortem report Exhibit 10. In the cross examination he denied that these injuries could be possible due to fall on the ground. The : 11 : evidence of Dr. Rathod finds corroboration from the contents of inquest panchnama also. From this medical evidence it is clearly proved that 3 external injuries were found on the body and the fracture of the skull as well as 2nd and 3rd cervical vertebra were result of the external injuries and particulary the injury No. 3. Taking into consideration this evidence supported by the oral evidence of P.W. 2 Kashiben and P.W. 3 Ranchhod there remains no doubt that Pravin died homicidal death. The evidence of P.W. 5 PSI Naran Vaza, in charge of Daman Police Station, reveals that accused was absconding and he came to be arrested on 6-7-1997. Accused was interrogated in the presence of two panch witnesses and he agreed to produce the brick from behind his house. Thereafter the police, panchas and accused went to the spot. The accused showed one brick which was lying behind the house - Article 3. It was seized under panchnama Exh. 13. This part of the evidence is also corroborated by the P.W. 4 Ramubhai Patel, who had also acted as panch witness about this recovery. : 12 : An attempt was made on behalf of the accused to contend that there was inordinate delay in lodging the report. According to the prosecution the incident has occured at about 2.30 p.m. while the FIR was lodged at about 10.00 p.m. on the same day. I find that the delay has been properly explained. When the incident occurred, only P.W. 2 Kashiben, sister of the accused, and P.W. 3 Ranchod were present. In view of the peculiar circumstances, possibly Kashiben was not inclined to lodge the report with the police as she had requested Ranchhod to leave the accused and thereby the accused ran away. It can be inferred that P.W. 3 Ranchhod also did not feel it necessary to lodge any report. The evidence of P.W. 4 Ramubhai reveals that on that day, at about 3 p.m. he had left his house to go to Udwada and at about 9.30 p.m. he came back and came to know from his daughter that accused Budhia had come to his house and informed that his son was not well. After getting this information, Ramubhai Patel immediately went to the house of the accused and saw the dead body of Pravin and immediately he went to the police station and lodged report. It appears that no other person was aware of the incident. In view of these : 13 : circumstances, the delay is properly explained and merely because of delay of about 6 to 7 hours, prosecution case cannot be thrown away nor the evidence of prosecution witnesses can be disbelieved. The learned counsel Mr. Shirsat for the Appellant has placed reliance upon Rajeevan & Anr. v/s State of Kerala (2003) 3 Supreme Court Cases 355. In view of the facts of that case and due to delay of 12 hours in lodging the FIR, the genuineness of the FIR was doubted. He has also placed reliance upon Om Prakash v/s. State of Maharashtra (2006) 2 Supreme Court Cases 250 wherein there was delay of 4 hours in lodging the report, though the police station was just 15 yards from the place of occurence and telephone service was also available. In view of the facts of that case, the Supreme Court held that the delay in lodging the report raised doubt as to prosecution case under Prevention of Corruption Act. It is well settled principle of law that First Information Report should be lodged promptly to avoid any possibility of manipulating and twisting the facts and to avoid any false implication of any innocent persons. Lodging of the report at the earliest cannot be : 14 : over-emphasised. However prosecution case cannot be thrown away nor FIR can be doubted merely on the basis of some delay in lodging the same if there is satisfactory explanation about the delay. Learned trial court had noted several circumstances in support of the prosecution case to come to the conclusion that accused was guilty of the offence. The accused admitted in his statement under section 313 of Cr. P.C. that P.W. 2 Kashiben was present at his house at 2.30 p.m. and she had come to give food to Pravin. The house of Kashiben is just behind the house of the accused and therefore she could immediately come to the house hearing the sound of quarrel from the house of accused. Similarly the house of P.W. 3 Ranchod is at a short distance of 50 to 60 sq. ft. and therefore he could also come there immediately on hearing the cries. The most important aspect of this case is that when the dead body of the son of the accused was lying in the house, he was holding a brick in his hand and after arrival of P.W. 3 Ranchhod he ran away from the spot and remained absconding for a period of : 15 : about 7 hours. It is against the natural conduct of a human being to run away from the spot when his own son is lying dead at the spot. No explanation is given by the accused as to how his son had died. If he was not responsible for the death there could be no reason for him to run away. On the contrary, he would have cried and rushed to the police station to see that the real culprit could be brought to book. Taking into consideration all the circumstances, I hold that the accused had assaulted his son and caused bleeding injuries resulting into death of his son. The learned trial court convicted the accused for the offence punishable under section 304 Part I of IPC. The learned Trial Court noted that the deceased was son of the accused. Incident must have occured due to sudden provocation. Ld. trial court noted that some exchange of hot words had taken place between the accused and his son and it resulted in some quarrel between them. During that quarrel, accused inflicted some bleeding injury to his neck with the brick. Learned trial court also noted that in view of these circumstances, the case is covered by : 16 : exception 4 to section 300 of IPC. The learned trial court held that accused could not be held guilty for the offence of murder punishable under section 302 of IPC. While making this observation, the learned trial court held that the accused could be convicted and sentenced for the offence punishable under section 304 Part I of IPC. Section 304 IPC reads as follows:- "Sec. 304:- Punishment for culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder, shall be punished with death, imprisonment for life or imprisonment of either description for a time which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death - or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death, or to cause such bodily injury as is likely to cause death." : 17 : From the language of section 304, it is clear that the accused, who commits culpable homicide not amounting to murder is to be punished under first part, if the act by which the death is caused is done either with intention of causing death or with intention of causing such bodily injury as is likely to cause death. However the offence under section 304 Part II of IPC is covered if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or without any intention to cause such bodily injury as is likely to cause death. Therefore the intention of the accused plays vital role in deciding whether the offence falls under Part I or Part II of sec. 304 IPC. Taking into consideration the circumstances noted earlier and noted even by the trial court, it is clear that due to the heated exchange of words the quarrel had taken place between the accused and his son and during the sudden quarrel and heat of passion the accused appears to have lifted the brick and assalted his son resulting in bleeding injuries. He had not used any sharp or cutting weapon or any deadly weapon. Taking into consideration the above circumstances it is : 18: impossible to believe that the intention of the accused was to cause death of his son. It is also impossible to believe that his intention was to cause such bodily injury which was likely to cause death of his son. It may be noted that in all three injuries were found. They were on the left side of the neck and head, and they resulted into fracture of second and third vertebra of the spinal canal which resulted in the death. It cannot be believed that he assaulted on the neck of his son with intention to cause such bodily injury which was likely to cause death. However it may be presumed that when he assaulted on the neck he could have knowledge that it was likely to cause death, though intention of causing such injury was not present. In these circumstances, in my considered opinion, the accused could be convicted for the offence of culpable homicide not amounting to murder, punishable under section 304 Part II and not Part I. Learned Trial Court did not give any reason as to why the accused was convicted under section 304 Part I. The accused is the unfortunate father, who is responsible for the death of his son and his Appeal against the conviction and sentence : 19 : could not be heard before he had completed the sentence awarded by the trial court. Therefore for practical purpose it makes no difference to him whether he is convicted under section 304 Part I or Part II of IPC. In view of these circumstances, no purpose will be served by modifying the sentence awarded by the trial court. 20. For the reasons stated above, the Appeal stands dismissed. However the conviction of the accused under section 304 Part I is converted into conviction under section 304 Part II of IPC. (J.H. BHATIA, J.)