Amol Suresh Ghuge vs The State Of Maharashtra
2022 Latest Caselaw 7459 Bom

                                                                   5. IA.213.19.doc

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                        CRIMINAL APPELLATE JURISDICTION

                      INTERIM APPLICATION NO. 213 OF 2019
                                      IN
                        CRIMINAL APPEAL NO. 1259 OF 2019

      Avinash Rajan Ambekar                             Applicant
                                                     .. (Org. Accused No. 8)
                 Versus
      State of Maharashtra                           .. Respondent

                                     WITH
                      INTERIM APPLICATION NO. 1370 OF 2020
                                       IN
                        CRIMINAL APPEAL NO. 1257 OF 2019

      Amol Suresh Ghuge                                 Applicant
                                                     .. (Org. Accused No. 2)
                 Versus
      State of Maharashtra                           .. Respondent

      Mr. Sudeep Pasbola a/w. Ayush Pasbola i/by Rahul Arote for Applicant
      in IA 1370/2020
      Mr. Waqar N. Pathan i/by W.Menezes a/w. Sushrut Desai and S.
      Anthony i/by Amrish Salunke for the Applicant in IA 213/2019
      Mr. S.S.Hulke, APP for the Respondent - State


                                      CORAM : A. S. GADKARI &
                                              MILIND N. JADHAV, JJ.

DATE : 1st August, 2022.

P.C.:

. These Interim Applications are for suspension of sentence and

releasing Applicants on bail.

2. Applicants are original accused Nos. 2 and 8 respectively.

Applicants have been convicted under Sections 341, 302 read with 34

5. IA.213.19.doc

of Indian Penal Code ( for short, "I.P.C.") and are sentenced to suffer

imprisonment for life and to pay total fine amount of Rs.5,500/- each,

by the learned Additional Sessions Judge, City Civil & Sessions Court,

Greater Mumbai in Sessions Case No. 527 of 2015 by its Judgment

and Order dated 11.09.2019.

3. At the outset, it is to be noted here that, the present case is

based on ocular evidence. Mr. Nishad Ahmed Siddique (PW-8) is the

sole eye-witness in the present case. In his testimony, he has deposed

that, at about 2:00 a.m. he heard some shouts and therefore he saw

outside through the broken tin of door of his room. That, two persons

had lifted one person and other two-three persons were also standing

there. Those persons tried to make the lifted person sit on the bike but

he was falling down. One of those persons picked up stone and gave

6-7 blows by it on the said person, who was falling down from the

bike. The blows by means of stones were given on the head of said

person. There was sufficient street light. PW-8 identified Vishal H.

Atkale (accused No.5), Abi i.e. Avinash R. Ambekar (accused No.8)

and Amol S. Ghuge (accused No.2) being among such persons. He

admitted that, he could not identify the forth person. The deceased

has been identified as Afzal by the witnesses.

In his cross-examination, Nishad Siddique (PW-8) has admitted

that, he did not inform about the incident which occurred in the wee

5. IA.213.19.doc

hours or intervening night of 15.02.2015 to 16.02.2015 between 2.15

a.m. to 2.30 a.m. to the family members of Afzal or to the neighbours

or to the Police This witness has further admitted that, he did not go

to work in the morning of 16.02.2015 as he had not received any

intimation for work. That, after the incident he was sleeping in his

room till 9:00 a.m. That, he saw outside and found that, there was

mob on the spot and police had arrived there. He has further admitted

that, Police were present there for 1-2 hours and were making enquiry

in the vicinity. That, on 16.02.2015 he met Kurar Police. That, he had

met Police Officer Mr. Sawant (PW-25) on 16.02.2015 but the

concerned officer did not record his statement on that day. His

statement was recorded only on 23.02.2015.

4. Perusal of evidence of the said witness, prima-facie creates

doubt in the mind of Court about his conduct and behaviour about not

reporting the said fact to the Police immediately after the said assault

on the deceased in the wee hours of 16.02.2015. It is to be noted here

that, prima facie it appears that there is no evidence as to who has

actually assaulted deceased Afzal with stone on the day and time of

the incident.

5. Applicants are in jail since the date of their initial arrest on

18.02.2015 and 22.02.2015 respectively. They have already

undergone incarceration of about 7 years as of today.

In view of the above, during the pendency of present Appeal,

5. IA.213.19.doc

substantive sentence imposed upon the Applicants can be suspended

and they can be released on bail

6. Hence the following Order:-

(i) Applicants-Accused be released on bail in Sessions Case

No.527 of 2015 arising out of C.R. No. 27 of 2015 registered

with D.C.B., C.I.D., Unit XII, Mumbai, on their furnishing

P.R. bond of Rs. 25,000/- each, with one or two separate

local sureties in the same amount;

(ii) After their release from jail and till final disposal of present

Appeal, Applicants are directed to attend the office of D.C.B.,

C.I.D., Unit XII, Mumbai, on every first Monday of the month

initially for a period of one year and thereafter on every first

Monday of every 3rd month, i.e. 4 times in a year.

7. Interim Applications are allowed in the aforesaid terms.

All the concerned to act on the basis of an authenticated copy of

this Order.

     [ MILIND N. JADHAV, J. ]                           [A. S. GADKARI, J.]

               Digitally signed
      SONALI   by SONALI
               SATISH KILAJE
      SATISH   Date:
               2022.08.03
      KILAJE   16:51:29
               +0530