Bombay High Court
Sambha @ Bandu Vithu Bawane vs State Of Mah. Thr. Pso Shegaon ... on 19 August, 2022
Bench: Manish Pitale, G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO. 341 OF 2022
IN
CRIMINAL APPEAL NO. 284 OF 2022
Sambha @ Bandu Vithu Bawane -- Appellant
Vs.
State of Maharashtra through P.S.O., Shegaon -- Respondent
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Mahesh Rai, Advocate for Appellant
Mr. A.S. Fulzele, APP for Respondent
CORAM : MANISH PITALE AND
G.A. SANAP, J.J.
DATE : 19th AUGUST, 2022
This is an application seeking suspension of sentence and
grant of bail filed on behalf of the applicant. That, the appeal was
admitted on 04/04/2022 and it is directed that the present
application may be considered after receipt of the record and
proceedings. The record and proceedings have been received.
2. Mr. Rai, learned counsel appearing for the applicant
submitted that in the present case, there is only one alleged eye
witness and the evidence of all other witnesses is based on
hearsay. It is submitted that even the evidence of the eye witness
MP Deshpande
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P.W.1 indicates that the applicant could not be convicted for the
death of the victim. It is submitted that the Sessions Court was
more affected by the fact that the applicant could be brought to
the trial after about 23 years of the incident. It is further
submitted that the alleged weapon of offence i.e. axe was also not
recovered from the applicant and, therefore, the applicant has
strong prima facie case in the appeal pending before this Court.
3. The learned Assistant Public Prosecutor invited attention
of this Court to the relevant portion of the impugned judgment
and order and he submitted that in the statement of PW 1
recorded at the time when the applicant was absconding,
demonstrated involvement of the applicant in detail and that the
aforesaid material was correctly taken into consideration by the
Sessions Court while convicting and sentencing the applicant. It
was submitted that, therefore, the application deserves to be
dismissed.
4. We have perused the impugned judgment and order passed
by the Sessions Court. We have also perused the evidence of
P.W.1, who according to the prosecution was the only eye witness
to the incident. A perusal of evidence of P.W.1 does not indicate
that he has implicated the applicant in any manner, although he
has described the injuries suffered by the victim and the fact that
he did report the matter to the police. Although, the said witness
was confronted with his statement given to the police after the
incident and the said witness was also cross-examined, the lone
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eye witness in the present case appears to be not supporting the
prosecution version. Depositions of all other witnesses are based
on hearsay. The weapon of assault is also not recovered and other
aspects of the matters, including medical evidence have been
appreciated in the impugned judgment and order, but, it appears
that much emphasis was placed on the fact that the appellant was
absconding for 23 years.
5. In view of the material brought to the notice of this Court,
we are of the opinion that prima facie case is indeed made out by
the appellant in his favour and hence, the application deserves to
be allowed.
6. Accordingly, the application is allowed. Sentence imposed
by the Sessions Court is suspended during pendency of the appeal
and appellant is directed to be released on bail on furnishing PR
bond of Rs.25,000/- and surety in the like amount to the
satisfaction of Registrar (Judicial) of this Court.
(G.A. SANAP, J.) (MANISH PITALE, J.)
Digitally signed by:MILIND
P DESHPANDE
Signing Date:19.08.2022
18:58
MP Deshpande
