(Abhay Manohar Sapre and Uday Umesh Lalit, JJ.)
Pandurang _____________________________________ Appellant
v.
The State of Maharashtra _______________________ Respondent
Criminal Appeal No. 819 of 2018 [Arising out of S.L.P. (Criminal) No. 5308 of 2018], @ SLP (Criminal) Diary No. 33340 of 2017, decided on July 4, 2018
The Order of the court was delivered by
Order
1. Delay condoned.
2. Leave granted. Heard the learned counsel for the parties.
3. This appeal is directed against the final judgment and order dated 7th January, 2013 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal No. 287/2011 whereby the Division Bench of the High Court dismissed the appeal filed by the appellant-accused and upheld the order of conviction and sentence dated 03.02.2011 passed by the Additional Sessions Judge, Bhokar in Sessions Case No. 44 of 2010 by which the appellant along with co-accused Sheshrao was prosecuted and eventually convicted for offence of murder under Section 302 read with Section 34 IPC. Both were awarded life imprisonment with a fine of Rs. 1000/- each, in default of which to undergo further rigorous imprisonment for three months.
4. It is brought to our notice that the co-accused named Sheshrao, who also suffered conviction along with the present appellant, had filed criminal appeals in this Court. This Court, by order dated 23.08.2017 in Criminal Appeal Nos. 1480-1481 of 2017 (Sheshrao v. State of Maharashtra) gave him the benefit of doubt and accordingly altered his conviction from Section 302 read with Section 34 IPC to Section 304 Part II IPC. In other words, to that extent his conviction was altered from Section 302 read with Section 34 IPC to Section 304 Part-II IPC.
5. It is not disputed that so far as the present appellant is concerned, his role and that of Sheshrao(Co-accused) is almost identical in commission of the crime in question. Learned counsel appearing for the respondent-State of Maharashtra has not disputed this factual scenario arising in the case.
6. We are, therefore, inclined to follow the reasoning and the conclusion arrived at by this Court in Sheshrao’s case supra.
7. We accordingly allow the appeal in part and while modifying the conviction and sentence, convert the appellant’s conviction from Section 302 read with Section 34 IPC to that of Section 304 Part-II of IPC.
8. Learned counsel appearing on behalf of the appellant, however, submits that the appellant has already undergone near about nine years in jail and therefore, the appellant be awarded jail sentence of already undergone.
9. Having regard to facts and circumstances of the case, we are inclined to accept his submission.
10. In view of the above, we award the sentence to the appellant of the period already undergone.
11. Since the accused appellant is still in jail, he is directed to be released forthwith, unless required in any other case.
SPECIAL LEAVE PETITION (CRIMINAL) Diary No(s). 33340/2017
Pandurang ______________________________________ Petitioner
v.
The State of Maharashtra ________________________ Respondent
(IA No. 114611/2017-CONDONATION OF DELAY IN FILING and IA No. 114613/2017-EXEMPTION FROM FILING O.T.)
Date: 04-07-2018 This petition was called on for hearing today.
(Before Abhay Manohar Sapre and Uday Umesh Lalit, JJ.)
For Petitioner(s) Mr. Yashwant Singh Yadav, Adv.
Mr. Anubhav, Adv.
Mr. Vijay Pal, Adv.
Mr. Shrikant Dubey, Adv.
Mr. Kuldeep Rai, Adv.
Mr. Varun Mishra, Adv.
Mr. Sahil Bhalaik, AOR
For Respondent(s) Mr. Nishant R. Katneshwarkar, AOR
UPON hearing the counsel the Court made the following
ORDER
12. Delay condoned.
13. Leave granted.
14. The appeal is allowed in terms of the signed order.
15. Since the accused appellant is still in jail, he is directed to be released forthwith, unless required in any other case.
16. Pending application stands disposed of.
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