Bombay High Court
Mahadev @ Hemant Masgonda ... vs State Of Maharashtra on 1 August, 2022
Bench: R.P. Mohite-Dere, Sharmila U. Deshmukh
rsk 1 14-IA-2324-22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2324 OF 2022
IN
CRIMINAL APPEAL NO.758 OF 2018
Mahadev @ Hemant Masgonda Kalgutagi ..... Applicant
Vs.
The State of Maharashtra ..... Respondent
Dr. Yug Mohit Chaudhary for the Applicant.
Mr. A. R. Kapadnis, APP for Respondent-State.
CORAM : REVATI MOHITE DERE &
SHARMILA U. DESHMUKH, JJ.
DATE : 1st AUGUST 2022.
P. C.
1. Heard learned counsel for the parties.
2. By this application, the applicant seeks suspension of
his sentence and enlargement on bail, pending the hearing and
final disposal of the aforesaid appeal.
Digitally
signed by
RAJESHWARI
RAJESHWARI SUBODH
SUBODH KARVE
3. The applicant vide Judgment and Order dated
KARVE Date:
2022.08.05
11:58:27
+0530
23/4/2018, passed by learned Addl. Sessions Judge, Kolhapur in
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Sessions Case No.96 of 2013, has been convicted for the offence
punishable under section 302 read with 34 and 120-B of IPC and
has been sentenced to suffer imprisonment for life.
4. It appears that the only evidence as against the
applicant is the evidence of the sole witness PW-19-Somesh Suhas
Sathe. The said witness has stated the manner in which the incident
has taken place i.e. firing of bullet on Ashok Patil by accused No.1-
Dilip Jadhav and Accused No.2-Amol Jadhav. The said witness has
further stated that the applicant (Accused No.5) and another co-
accused i.e. accused No.4 came on motor cycle and Activa at the
spot, and that the accused Nos. 1 and 2 sat on the said motorcycle
and escaped.
5. Learned counsel for the applicant submits that the
evidence of PW-19-Somesh Sathe shows that the said witness has
stated that one eye of the applicant (original accused No.5) was
defective, Whereas, the arrest form which is at page No.88 of the
paper book, shows that the person who had a defective eye, was
accused No.3-Harish and not the present applicant (accused No.5).
Learned counsel also relied on the arrest form of the applicant
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particularly page No.96 of the paper book wherein, in the column
of deformities, nothing is mentioned. Having regard to the same, it
is submitted that the identification of the applicant cannot be relied
upon and is rendered suspect.
6. He further submits that apart from the evidence of
PW-19-Somesh Sathe, there is no other corroborative piece of
evidence to connect the applicant with the offence. He further
submits that the applicant has no antecedents and that the applicant
is in custody, for the last 9 ½ years.
7. Learned APP opposed the application.
8. Perused the papers, in particular the evidence of PW-
19-Somesh Sathe, who is the sole eye witness in the said case. As far
as role of the applicant is concerned, PW-19 has stated that after
the bullets were fired by accused No.1-Dilip Jadhav and accused
No.2-Amol Jadhav, two persons were present, one on Activa and
another on motor cycle, and that the said assailants who fired at
Ashok Patil, sat on the said Motor Cycle/Activa and went from the
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said spot. Accused No.3-Harish Patil is also stated to have sat on
the motor cycle behind Amol Jadhav.
9. Perusal of the evidence of PW-19-Somesh Sathe
shows that he has stated that one eye of the applicant was defective ,
whereas, the arrest form which is at page 96 of the paper book
shows that the person who had deformity i.e. a defective eye was
accused No.3-Harish. As far as the applicant is concerned, in his
Arrest Form, the column with respect to deformity, the same is
blank.
10. Apart from the aforesaid, there is no other
corroborative piece of evidence, in terms of last seen, recovery or
motive to connect the applicant with the offence. The Applicant is
in custody for about 9½ years. We accept the statement of the
learned Counsel for the applicant, that the applicant has no
antecedents.
11. Considering the aforesaid, the application is allowed
and the applicant's sentence is suspended and he is enlarged on
bail, pending the hearing and final disposal of his Appeal, on the
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following terms and conditions :-
ORDER
i) The Applicant be enlarged on bail on
furnishing P.R. Bond in the sum of Rs.25,000/- with
one or two sureties in the like amount;
ii) The Applicant shall report to the trial Court,
once in three months on the day/date specified by the
trial Court, till his Appeal is finally disposed of;
iii) The Applicant shall keep the trial Court
informed of his current address and mobile contact
number and/or change of residence or mobile details,
if any, from time to time;
iv) If there are two consecutive defaults in
appearing before the trial Court, the learned Judge
shall make a report to the High Court and the
prosecution would be at liberty to file an application
seeking cancellation of bail.
12. The Application is allowed in the aforesaid terms and
is accordingly disposed of.
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13. All concerned to act on the authenticated copy of this
order.
SHARMILA U. DESHMUKH, J. REVATI MOHITE DERE, J.
