RAKESH TUKARAM KOSHTI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an application under Sec. 389 of the Criminal Procedure Code by the applicant, who is the original accused no.16 out of 20 accused who came to be prosecuted by the respondent no.1 of the offences punishable under Sec. 143, 147, 148, 307 r/w 149 of the Indian Penal Code and under Sec. 7 of the Criminal Law Amendment Act in Sessions Case No.68 of 2017, wherein the learned Additional Sessions Judge by the impugned judgment and order dtd. 11/7/2023 convicted the applicant along with other accused and sentenced him to undergo Rigorous Imprisonment for 7 years with fine of Rs.5,000.00 of an offence punishable under Sec. 307 r/w 149 of the Indian Penal Code along with his conviction and sentence under Sec. 148 of the Indian Penal Code.

(2.) It is a matter of record that this applicant during the pendency of the trial, has been released on bail by this Court on 5/9/2018 in Bail Application No.1723 of 2018. At the time of releasing the applicant on bail pending the trial, it was noted by this Court that the role played by the present applicant was similar to that of the role played by co-accused Aakash Jadhav and Kiran Nagare who were also the members of an unlawful assembly and were also involved in assaulting deceased Sunil and injured Hemant, have been granted bail by this Court on 30 th July, 2018 and 16/4/2018 respectively. The applicant came to be released on bail on the ground of parity. This Court had further noted as regards criminal antecedents of the applicant by observing that even co-accused Kiran Nagare, who had criminal antecedents, came to be released by this Court on bail even after noticing the said fact by this Court earlier.

(3.) Mr. Nikam, learned Counsel for the applicant, apart from the order passed by this Court on 5/9/2018 qua this applicant, has also invited my attention to the fact that there are no complaints of misusing the liberty by the applicant during the pendency of the trial after his release on bail. He submits that the prime accused has been convicted under Sec. 302 of the IPC and has been sentenced to life imprisonment. Mr. Nikam would argue that he had already undergone more than 2 years of sentence. He has invited my attention to the testimony of PW-7 Mandabai Wagh, who is the mother of deceased Sunil and injured Hemant. In her evidence, PW-7 Mandabai Wagh identified accused Kundan Pardeshi, Venkatesh More, Kundan Pardeshi, Akshay Ingale and Ajay Borisa. Prima facie, it appears that she had not identified the applicant. It is not clear whether the applicant was present in the trial Court at the time of recording of evidence of PW-7 Mandabai Wagh.