Bombay High Court
Balaji Fulchand Sarje vs The State Of Maharashtra on 28 October, 2021
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1331 OF 2021
IN APEAL/223/2021 WITH APEAL/223/2021
BALAJI FULCHAND SARJE
VERSUS
THE STATE OF MAHARASHTRA
Advocate for Applicant : Mr. P.P. More.
APP for Respondent : Mr. S.P. Deshmukh.
CORAM : V.K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
DATE : 28.10.2021.
Per Court :
1. Pending Criminal Appeal No. 223/2021, preferred against
the judgment and order of conviction passed by the Sessions
Judge, Latur, dated 24.03.2021, in Sessions Case No. 57/2020,
convicting thereby the accused for the ofence punishable under
Section 302 of the Indian Penal Code and sentencing him to
sufer imprisonment for life and to pay fne of Rs. 10,000/- in
default R.I for six months. The applicant / accused has preferred
this application for suspension of substantive part of the
sentence and for bail.
2. The prosecution story in brief is that the applicant/accused
has committed the murder of his cousin namely Tushar Sarje on
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21.12.2019.
3. Learned counsel for the applicant / accused submits that
the prosecution case rests upon the circumstantial evidence and
there is no direct evidence in this case. The learned counsel
submits that the prosecution case mainly rests upon the oral
dying declaration allegedly made by the deceased before a third
person and also to his cousin on a voice call. The learned
counsel submits that if the case rests upon circumstantial
evidence, the motive plays the great role. In the instant case,
there was no motive for the applicant / accused to commit the
murder of his cousin. Learned counsel submits that the
prosecution has also brought on record certain circumstances
indicating that the deceased was lastly seen alive in the
company of the applicant. The learned counsel submits that it
appears from the prosecution evidence that the incident has
taken place as of sudden without any premeditation and upon
quarrel. The learned counsel for the applicant / accused has
also pointed out that it is a case of single blow by knife and as
such, it cannot be inferred that there was an intention to commit
the murder. The learned counsel submits that even though the
weapon knife allegedly seized at the instance of the applicant /
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accused, however, no blood was found on the said knife. The
learned counsel submits that even the CA report is also
negative. There was no blood on the clothes of appellant /
accused seized during the course of investigation. The learned
counsel submits that though the applicant / accused was not on
bail during trial, however, there are no antecedents and
considering that the entire prosecution case rests upon the
circumstantial evidence, the applicant / accused may be
released on bail by suspending the substantive part of the
sentence. The applicant / accused has deposited fne amount
before the trial Court.
4. Learned APP has strongly resisted the application on the
ground that though the prosecution case rests upon the
circumstantial evidence, however, the prosecution has proved
the oral dying declarations made by deceased before two
witnesses. The prosecution has also established that deceased
was lastly seen alive in the company of applicant / accused just
prior to the alleged incident. The learned APP submits that the
trial Court has thus rightly appreciated the circumstantial
evidence and convicted the applicant / accused. The applicant /
accused has not made out any case to release him on bail by
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suspending the substantive part of the sentence.
5. We have carefully gone through the notes of evidence and
the record of the proceedings. The prosecution case entirely
rests upon the circumstantial evidence and there is no direct
evidence in this case. As per the prosecution case deceased
Tushar had made oral dying declaration before P.W. 6 - Sambhaji
Fagare, who is the road contractor. On 21.12.2019 at about
03:00 p.m. to 03:30 p.m., P.W. No. 6 - Sambhaji noticed that
deceased Tushar was lying in injured condition by the side of the
road. It further appears that deceased Tushar had also made
dying declaration on a voice call to P.W. 2 - Nitin Sarje, who
happened to be his cousin. It appears on 21.12.2019, at about
01:42 p.m. deceased Tushar had made a video call to P.W. 2 -
Nitin Sarje and at that time P.W. 2 - Nitin Sarje had noticed that
the applicant accused Balaji and deceased Tushar were
consuming liquor in a Jowar crop feld. P.W. 2 - Nitin Sarje, there
upon told them to consume less liquor and return to the house
as early as possible. It appears from the evidence of P.W. 9 - Dr.
Indrajeet Lakade, who has conducted the postmortem
examination of the dead body of deceased Tushar, that it is a
case of single stab wound. Thus considering the evidence of
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P.W. 2 - Nitin Sarje about the video call made by deceased
Tushar to him on 21.12.2019 at about 01:42 p.m. when
deceased Tushar and applicant were consuming liquor in Jowar
crop feld, the possibility of an instant quarrel without any
premeditation cannot be ruled out. It is also not disputed that
there was no motive for the applicant/accused to commit the
murder of his own cousin. Furthermore, it is a case of single
blow and the possibility cannot be ruled out that a heat of anger
during the course of the quarrel, the single blow of knife was
given. It is also cannot be ignored that just prior to the alleged
incident deceased Tushar and applicant were consuming the
liquor in Jowar crop feld and they were enjoying their private
party. There are no antecedents. Even though the applicant /
accused was not on bail during the course of the trial, however,
considering the evidence as against him, we are inclined to
release the applicant on bail by suspending substantive part of
the sentence. We pass the following order :
ORDER
i. The application is hereby allowed.
ii. Pending Criminal Appeal No. 223/2021, preferred against
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the judgment and the order of conviction dated 24.03.2021,
passed by the Sessions Judge, Latur in Sessions Case No.
57/2020, the substantive part of the sentence passed against
the appellant / accused to sufer the imprisonment for life is
hereby suspended and till then the applicant / accused Balaji
s/o. Fulchand Sarje, be released on bail on furnishing Personal
bond in the sum of Rs. 20,000/- (Rupees twenty thousand) with
one solvent surety in the like amount.
iii. Record and proceedings shall be sent back to the trial
Court forthwith for preparation of the paper book as per the
rules.
iv. Application is accordingly, disposed of.
( SANDIPKUMAR C. MORE, J. ) ( V .K. JADHAV, J. )
S.P.C.
