Sahadeo S/O Sitaram Koreti (In ... vs State Of Maharashtra, Thr. Pso Ps ...
2021 Latest Caselaw 11018 Bom

appa273.21                                                                                                  1
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               NAGPUR BENCH : NAGPUR


                       CRIMINAL APPLICATION (APPA) NO. 273/2021
                                          IN
                            CRIMINAL APPEAL NO. 175/2021
                                             Sahadeo S. Koreti
                                                ...VERSUS...
                                          State of Maharashtra
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Office Notes, Office Memoranda of Coram,                             Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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                              Shri A.C. Jaltare, Advocate for the applicant/appellant(s)
                              Shri V.A. Thakare, APP for the non-applicant/respondent - State


                              CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

AUGUST 13, 2021

1] By this application under Section 389 of the Code of Criminal Procedure, the appellant is seeking suspension of substantive sentence and for grant of bail. The appellant is undergoing imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code.

2] The case of the prosecution briefly stated is as under :-

On 26/05/2019, Sitaram Hiransingh Koreti (informant) was sleeping in his house. His son Tengsu (deceased) was also sleeping nearby. It is alleged that the accused came there under the influence of liquor and started quarrel with the deceased. It is alleged that the accused inflicted blows of axe on the left shoulder and neck of the deceased and ran away. Sitaram (informant) called his grand

ANSARI

son and told about the incident and also called the ambulance and took the deceased to the government hospital where he succumbed to the injuries. The informant therefore lodged a report which came to be registered as Crime No. 20/2019 for the offence punishable under Section 302 of the Indian Penal Code. The Investigating Officer carried out the investigation and after completion of the investigation filed charge-sheet with the Judicial Magistrate First Class, Kurkheda who committed the said case to the learned Sessions Judge as per Section 209 of the Code of Criminal Procedure as the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions. The prosecution in support of its case examined 11 witnesses. The appellant - accused did not adduce any evidence. The learned trial Court after considering the evidence on record convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and to pay fine of Rs. 5,000/- in default to suffer further rigorous imprisonment for 3 months. The appellant has therefore filed the present appeal.

3] This Court on 28/06/2021 admitted the present appeal and called for record and proceedings. The record and proceedings is received by this Court.

4] We have heard learned advocate for the appellant and learned APP.

5] We have meticulously gone through the depositions of the witnesses. We have perused the various

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exhibits proved by the prosecution to substantiate their case. On scrutiny of the evidence on record, we find that the learned trial Court has placed reliance on the testimony of Sitaram - PW3 as an eye witness. On careful scrutiny of the evidence of PW3, prima-facie, at this stage, we find that from the testimony of the PW3, it cannot be said that he was the eye witness to the incident. Sitaram - PW3 admitted in his cross-examination that when he woke up from bed and went in the court yard, the deceased Tengsu was alone in the court yard. Apart from the said evidence, it appears that the recovery of the alleged weapon was from the open space. The learned trial Court has placed reliance on the seizure of weapon and seizure of clothes to base its conviction. The evidence on record shows that prima-facie the clothes were not sealed. The Medical Officer Shri Sachin Chandradas Kawadkar - PW11 admitted in his evidence that when the axe was sent for his opinion, it was not in a sealed condition.

6] The appellant is in jail since 27/08/2019. There is no possibility of the appeal being heard in measurable time. In that view of the matter and since the appellant has made out prima-facie case, the application for suspension of sentence and for grant of bail deserves to be allowed.

                           7]                 Hence, the following order:-


                                        (a)          The order of sentence imposed by the
                                                     judgment and order dated 19/12/2020
                                                     passed   by      the    learned       Additional




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Sessions Judge, Gadchiroli in Sessions Case No. 120/2019 is suspended.

(b) The appellant is directed to be released on bail on furnishing bail bond in the sum of Rs. Five Thousand with one or more sureties in the like amount.

(c) The appellant shall attend Korchi Police Station once in six months.

The criminal application is allowed accordingly.

                                         (JUDGE)                            (JUDGE)




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