Sambhaji S/O Pralhad Kalbage vs State Of Mah. Thr. Pso Ps Balapur ...
2021 Latest Caselaw 14464 Bom

Citation : 2021 Latest Caselaw 14464 Bom
Judgement Date : 5 October, 2021

Bombay High Court

Sambhaji S/O Pralhad Kalbage vs State Of Mah. Thr. Pso Ps Balapur ... on 5 October, 2021

Bench: V.M. Deshpande, Amit B. Borkar

appa534.20 3
1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

CRIMINAL APPLICATION (APPA) NO.534/2020
IN
CRIMINAL APPEAL NO.518/2020
Sambhaji s/o Pralhad Kalbage
..vs..
State of Mah., thr.PSO Balapur Police Station, District Akola, Maharashtra

...................................................................................................................................................................
Office Notes, Office Memoranda of Coram,
appearances, Court orders or directions Court's or Judge's Order
and Registrar's orders
...................................................................................................................................................................
Shri S.S.Das, Counsel for the Applicant (Appointed).
Shri T.A.Mirza, Addl.P.P. for the State.

CORAM : V.M.DESHPANDE &
AMIT B.BORKAR, JJ.
DATED : OCTOBER 05, 2021

1. This is an application for suspension of
substantive jail sentence and for grant of bail.
2. By judgment and order of conviction dated
11.4.2018 passed by learned Additional Sessions Judge,
Akola in Sessions Trial No.154/2011, the applicant was
convicted for offence punishable under Section 302 of the
Indian Penal Code and was directed to suffer imprisonment
for life.
3. The applicant is neighbour of deceased Shriram.
4. This appeal was admitted on 18.12.2020. For
consideration of the present application, record and
proceedings were called for. Accordingly, record and
proceedings are received and those are kept for our perusal.

.....2/-

::: Uploaded on - 05/10/2021 ::: Downloaded on - 06/10/2021 07:42:05 :::
appa534.20 3
2

5. We have heard learned counsel Shri S.S.Das
appointed by the High Court Legal Services Sub Committee
at Nagpur to represent the applicant and learned Additional
Public Prosecutor Shri T.A.Mirza for the State.
6. According to learned counsel for the applicant,
if evidence of Gunjabai (PW1) is scrutinized in its correct
perspective, it shows that she is not sure whether First
Information Report (Exhibit-42), which is filed in the name
of Bhuljabai, is the same. He also submitted that there was
no intention on the part of the applicant to commit murder.
He also submitted that during the trial the applicant was on
bail and at no point of time he has misused the liberty
granted to him. He, therefore, submitted that the present
application be considered favourably.
7. Per contra, learned Additional Public Prosecutor
Shri T.A.Mirza for the State vehemently opposed the plea for
grant of bail. He submitted that there are two eyewitnesses
in this prosecution case. He also submitted that there is
recovery at the behest of the applicant and Chemical
Analyzer's Report shows blood on clothes of the applicant as
well as on weapon. He, therefore, submitted that the
application be rejected.
8. After considering evidence of Kailash Ingale
(PW4), in the light of statement made by Gunjabai (PW1), in
her cross-examination which is recorded at paragraph No.9
of her deposition, prima facie we are unable to accept the
submission made on behalf of learned Additional Public

.....3/-

::: Uploaded on - 05/10/2021 ::: Downloaded on - 06/10/2021 07:42:05 :::
appa534.20 3
3

Prosecutor for the State that he can be termed as eyewitness.
Thus, at the time of consideration of the present application
for grant of bail, his testimony cannot be considered as
testimony of eyewitness.
9. Gunjabai (PW1) is widow. Though learned
counsel for the applicant tried to canvass before us that
whether Gunjabai is the lady who has given the First
Information Report, since oral report (Exhibit-42) depicts
name of Bhuljabai, at this stage the Court need not go into
controversy since it can be decided when the appeal will be
taken up for its final hearing.
10. Be that as it may, incident has occurred on
18.6.2021. Evidence of Gunjabai shows that the applicant
demanded Rs.500/- from the deceased and that ensued
altercation between them and in that altercation the
applicant assaulted on Shriram, resulting into injury to his
head. It appears that the applicant has taken to hospital
where treatment was given but unfortunately during the
treatment he passed away.
11. Sy.Numan Husaini (PW9) is doctor, an
Associate Professor (Department Forensic, Government,
Medical College), Rajnandgaon, at the time when his
evidence was recorded. However, on 22.6.2011 he was
discharging his duties as an Assistant Profession, Department
of Government Medical College, Akola. He performed
postmortem. Postmortem Report is proved. The said
postmortem report is at Exhibit-75. According to opinion of

.....4/-

::: Uploaded on - 05/10/2021 ::: Downloaded on - 06/10/2021 07:42:05 :::
appa534.20 3
4

the doctor, death is due to " Cranio Cerebral" injury that is
injury on his head.
12. Genesis, as brought on record, shows that there
was altercation and in that altercation Shriram was
assaulted. Prima facie, that does not show that the applicant
was having any intention to kill Shriram. In our view, it is
quite possible that offence can be scaled down for lesser
offence.
13. The applicant was on bail during Trial and at no
point of time he has misused the liberty granted to him in his
favour. Similarly, there is no criminal antecedents at his
discredit.
14. The aforesaid discussion allows us to consider
the application filed on behalf of the applicant favourably.
Hence, we pass following order:
ORDER

(1) The criminal application is allowed.

(2) Judgment and order dated 11.4.2018 passed by learned Additional Sessions Judge, Akola in Sessions Trial No.154/2011 convicting the applicant for offence punishable under Section 302 of the Indian Penal Code shall remain suspended during the pendency of the appeal.

(3) The applicant be released on bail on he execution a P.R.Bond in the sum of Rs.5000/- with one solvent surety of the like amount.

.....5/-

appa534.20 3

(4) Learned Judge before whom the bail bonds will be executed shall ensure that before issuing warrant of release the applicant has deposited the fine amount.

The criminal application stands disposed of accordingly.

                          JUDGE                          JUDGE
         !! BRW !!




                                                                         ...../-