Bombay High Court
Umrao S/O. Ganpati Mohate And Anr vs The State Of Maharashtra on 31 March, 2021
Bench: V. V. Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.952 OF 2020
IN
CRIMINAL REVISION APPLICATION NO.184 of 2017
1. Umrao s/o Ganpati Mohate
and another = APPLICANTS
VERSUS
The State of Maharashtra = RESPONDENT
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Mr.Ram S.Shinde,Advocate for Applicant/s;
Mr.AV Deshmukh,APP for Respondent-State.
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 31st March, 2021.
PER COURT :-
1. Heard learned Advocate and learned APP
appearing for respective parties.
2. By this Criminal Application, the
applicants, pray for suspension of substantive
sentences and releasing them on bail during
pendency and final hearing of the Criminal
Revision.
3. The applicants are the original accused
in Regular Criminal Case No.111/2002, who have been
convicted by learned JMFC, Udgir, vide judgment and
order dated 18th July, 2008. The applicants have
been convicted and sentenced by the Trial Court,
thus, -
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a) Under Section 452 of IPC and
sentenced to suffer S.I. for two years
and to pay a fine of Rs.5,000/- each, in
default, S.I. for a period of six months;
b) Under Section 323 of IPC and
sentenced to suffer S.I. for six months;
. Both the sentences are ordered to run
concurrently.
4. Aggrieved by the aforesaid judgment and
order of conviction, the applicants have preferred
an appeal being Criminal Appeal No.15/2008, which
has been partly allowed by the learned Additional
Sessions Judge, Udgir, vide his judgment and order
dated 12.5.2017, whereby the conviction under
Section 323 read with 34 of IPC, awarded by the
Trial Court, has been quashed and set aside and
conviction and sentence under Section 452 read with
34 of IPC has been upheld.
5. It is vehemently submitted on behalf of
the applicants that the prosecution has not
examined any independent witnesses to corroborate
the case of the informant. It is the case of the
prosecution that the informant, along with his
family members and co-sharer - Hanumant, was
present at home, however, said Hanumant was not
examined before the Court as he is the eye-
witnesses to the incident in question. The version
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of interested witnesses, viz. PW 1, PW 2 and PW 3,
cannot be relied on without there being any
independent corroborative witness. The prosecution
has not proved its case beyond all reasonable
doubts. There is no material on record to indicate
guilt of the accused persons. The medical evidence
has not been proved by leading a cogent and
convincing evidence therefor. The prosecution has
to prove its case with substantive evidence and in
the instant case, though the eye witnesses were
present at the time of the alleged incident, but
none of them have been examined during the course
of the trial. The learned Advocate further submits
that the revision involves other legal
points/issues, which the applicants intend to
agitate and address them at the time of final
hearing and the applicants have every hope of
success in the revision. Consequently, the
applicants pray for releasing them on bail by
suspending the substantive sentences awarded
against them on such terms and conditions as this
Court may deem fit and proper in the interest of
justice.
6. Per contra, learned APP vehemently
resisted the application and supported the reasons
assigned by the learned Sessions Judge while
convicting and imposing the sentence against the
applicants and no interference is warranted. The
learned Sessions Judge has properly scanned and
scrutinized the evidence brought on record. It is,
therefore, submitted that the application lacks
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merit, deserves to be dismissed and it be dismissed
accordingly.
7. As it appears from the impugned judgment
of the learned Sessions Judge, particularly the
sentences, that have been awarded against the
applicants for the offences in question, are the
short-term sentences. In view of the decision in
the case of Kiran Kumar Vs. State of M.P. - (2001)
9 SCC 211, benefit will have to be extended to the
applicants when they have demonstrated that the
material and significant points raised by them in
the revision are required to be pondered at the
time of final hearing. In this view of the
matter, it can be said that a case is definitely
made out for releasing the applicants on bail by
suspending the substantive sentence during pendency
and final disposal of the revision. Hence,
following order,-
ORDER
i. The Criminal Application stands
allowed.
ii. The substantive sentence imposed
on the applicants by learned Additional
Sessions Judge, Udgir, vide judgment and
order dated 12.5.2017 in Criminal Appeal
No.15/2008, is hereby suspended till
hearing and final disposal of the
revision.
iii. The applicants - 1) Umrao s/o
Ganpati Mohate; and 2) Laxmibai w/o
Eknath Mohate, be released on their
executing PR and SB of Rs.15,000/
(Rupees fifteen thousand) each.
iv. The revision applicants shall
not indulge in any criminal activity
during pendency of the Criminal Revision.
v. The applicants shall remain
present before the learned Trial Judge
once in six months, till final hearing
and disposal of the appeal, commencing
from the date he tenders bail papers and,
thereafter, the Trial Judge to fix dates
for their subsequent appearances.
vi. In case of two consecutive
defaults on the part of the applicants to
remain present before the Trial Court,
the Trial Court to inform this Court
about the same and in that eventuality,
the prosecution would be at liberty to
file an application for cancellation of
the bail granted to the applicant.
vii. Bail before the Sessions Court.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
