Bombay High Court
Gopal Ganesh Kadam vs The State Of Maharashtra on 16 December, 2022
Bench: R. G. Avachat, R. M. Joshi
914-APPLN-3966-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3966 OF 2022
IN
CRIMINAL APPEAL NO. 922 OF 2022
Gopal Ganesh Kadam ..APPLICANT
VERSUS
State of Maharashtra ..RESPONDENT
....
Mr. B.N. Magar, Advocate for applicant
Mr. R.V. Dasalkar, A.P.P. for respondent - State
Mr. S.S. Jadhavar, Advocate for assist to A.P.P.
....
CORAM : R.G. AVACHAT AND
R.M. JOSHI, JJ
DATE : 16th DECEMBER, 2022
PER COURT :
1. This is an application for suspension of substantive sentence of
imprisonment passed by the learned Additional Sessions Judge,
Basmathnagar in Sessions Case No. 42 of 2016 vide judgment and order
dated 23rd March, 2022. The applicant has been convicted for the offences
punishable under Section 302, 307, 323, 143, 147, 148 read with Section 149
of the Indian Penal Code (I.P.C.).
2. Heard. Issue notice to the respondent. Learned A.P.P. waives
service of notice for respondent - State.
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3. By this application the applicant is seeking suspension of sentence
and bail on the ground that the incident in which the deceased died there
occurred counter attack between the parties and the deceased died with
single blow on his stomach. According to him, the applicant cannot be said
to have carried intention to kill the deceased and the possibility of occurrence
of the incident at the spur of the moment cannot be ruled out.
4. Learned A.P.P. and learned counsel for the informant opposed said
submissions. According to them, the use of knife in the assault itself is
sufficient to indicate the intention of the applicant to kill the deceased. It is
argued that since the present applicant is responsible for causing death of the
deceased, his application for suspension of sentence be rejected.
5. At this stage, consideration of material evidence on record
indicates that there was fight between the rival groups, which can be seen
from the number of injuries caused to the applicant as well as co-accused. As
far as the causing of stab injury to the deceased is concerned, he died of the
said single injury and in the facts of the case, we find that appellant may be in
a position to make out case at final hearing applicant that at the time of
occurance of the incident, the applicant had no intention to kill the deceased.
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6. The applicant is in jail since 2016. At the time of incident, he was
twenty-two years of age, with no other crime recorded against him. In the
aforesaid circumstances and as the appeal is not likely to come up for final
hearing in the near future, we are inclined to allow the application as under :-
ORDER
(i) Criminal application is allowed in terms of prayer
clause (B).
(ii) Pending the appeal, the substantive sentence of
imprisonment imposed by the trial Court is suspended. The
applicant be released on bail on his executing P.R. bond in the
sum of Rs.15,000/- (Rupees Fifteen Thousand) with one surety in
the like amount.
(iii) Bail before the trial Court.
( R.M. JOSHI, J. ) ( R.G. AVACHAT, J. )
SSD
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