Bombay High Court
Dharmraj S/O Kantilal Gahagaye vs State Of Mah. Thr. Pso Gangazari ... on 24 November, 2021
Bench: M.S. Sonak, Pushpa V. Ganediwala
4APPA 396-2021 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APPA) NO. 396 OF 2021
IN
CRIMINAL APPEAL NO. 288 OF 2021
(Dharmraj s/o Kantilal Gahagaye Vs. State of Maharashtra)
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. A.D. Tote, Advocate for the applicant/ appellant.
(appointed).
Mrs. M.A. Barabde, A.P.P. for the respondent.
.....
CORAM : M.S. SONAK &
PUSHPA V. GANEDIWALA, JJ.
NOVEMBER 24, 2021.
Heard Mr. Tote, learned counsel
appointed under the legal aid scheme for the
appellant, and Mrs. Barabde learned A.P.P. for the
respondent.
2] This is an application for suspension of
sentence pending appeal against the judgment and
order dated 04/02/2016 passed by the Sessions
Court, Gondia convicting the appellant for the offense
punishable under Section 302 of the Indian Penal
Code and sentencing him to rigorous imprisonment
for life.
3] Mr. Tote, learned counsel submits that
the appellant has very good chances to succeed on
merits. He submits that the prosecution case is
purportedly backed by interested witnesses. There
was no recovery in terms of Section 27 of the
Evidence Act and identification is also extremely
doubtful on account of the light conditions at the
time of the alleged commission of the crime. He
submits that the appellant has already spent almost 7
years in prison and it is becoming difficult for his
family members to survive. For all these reasons, Mr.
Tote submitted that the sentence may be suspended.
4] Mrs. Barabde, learned A.P.P. opposed the
contentions raised by Mr. Tote and submitted that
even during trial, the appellant was not on bail, and
further the conviction is based on cogent and
admissible evidence.
5] According to us, this is not a fit case for
suspension of sentence. Apart from the fact that the
appellant was not on bail during the trial, we find
that the contentions now raised by Mr. Tote are the
contentions that can be considered at the stage of
disposal of the Appeal. Besides, we find that prima-
facie the conviction is based on the testimony of eye-
witnesses and also medical/ forensic evidence. The
conviction is for a serious crime and a sentence of life
imprisonment is awarded to the appellant.
6] Having regard to all these factors, we do
not think that it would be appropriate to suspend the
sentence and enlarge the appellant on bail. However,
we are inclined to accept the alternate statement of
Mr. Tote that this Appeal be expedited.
7] Accordingly, the application for
suspension of sentence is dismissed. However, the
Registry is directed to expedite the preparation of the
paper book and thereafter place this matter for final
disposal.
8] The application for suspension of
sentence is disposed of in the aforesaid terms. There
shall be no order as to costs.
9] For purposes of this application, we
quantify the fees payable to Mr. Tote at Rs.1,500/-
(rupees one thousand five hundred only).
(PUSHPA V. GANEDIWALA, J.) (M.S. SONAK, J.)
Sumit
Digitally signed bySUMIT CHETAN
AGRAWAL
Signing Date:25.11.2021 17:55
