Bombay High Court
Shantabai @ Shobha Kallu @ ... vs The State Of Maharashtra on 7 June, 2022
Bench: R.P. Mohite-Dere, Virendrasingh Gyansingh Bisht
26-IA-1255-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1255 OF 2022
IN
CRIMINAL APPEAL NO.403 OF 2022
SHANTABAI @ SHOBHA KALLU @ )
KALLAPPA BAGADI )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr. Aniket Vagal a/w. Mr. Kunal Pednekar, Advocate for the
Appellant.
Mrs. P.P. Shinde, APP for the Respondent - State.
CORAM : REVATI MOHITE DERE &
V. G. BISHT, JJ.
DATE : 7th JUNE 2022
P.C. :
1 Heard learned counsel for the parties.
2 By this interim application, the applicant seeks suspension of
his sentence and enlargement of bail, pending the hearing and
final disposal of the aforesaid appeal.
ARTI
VILAS
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KHATATE
Digitally signed by
ARTI VILAS
KHATATE
Date: 2022.06.08
17:42:42 +0530
26-IA-1255-2022.doc
3 Perused the papers. The prosecution case rests on
circumstantial evidence. It appears from a perusal of the
impugned judgment and order that the learned Judge has
primarily convicted the applicant only on the basis of the applicant
being last seen in the company of the deceased on the date of the
incident and on the premise that the applicant had taken up a
false plea that the deceased had committed suicide, which is
contrary to the medical evidence. Learned counsel for the
applicant submits that there are absolutely no circumstances on
record, which bring home the complicity of the applicant. He
submits that the prosecution has not brought any evidence on
record with respect to last seen, though the learned Judge has
observed that the applicant was last seen with the deceased. He
further submits that the prosecution has also failed to bring on
record evidence of motive for the applicant to cause the death of
the deceased. According to the learned counsel for the applicant,
Section 106 of the Evidence Act will apply only to those cases
where the prosecution has succeeded in establishing the facts from
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which a reasonable inference can be drawn regarding the
existence of certain other facts which are within the special
knowledge of the applicant. He submits that in the present case,
the prosecution has failed to prove a single circumstance against
the applicant and as such, mere failure by the applicant to offer a
reasonable explanation in discharging the burden, cannot be a
ground to convict the applicant. Learned counsel relied on the
judgment of the Apex Court in the case of Nagendra Sah vs. State
of Bihar1, in support of the said submission.
4 It appears that initially the applicant had informed PW5-
Jayshree Shivaji Bagadi that her husband-deceased was lying in
the house and subsequently, the applicant had disclosed to the
police that she had assaulted her husband. The disclosure made by
the applicant to the police is clearly inadmissible. Prima facie,
after perusing the evidence, we find that there is no evidence to
show, that the deceased was last seen in the company of the
applicant. Admittedly, the prosecution case rests on circumstantial
evidence. Prima facie, we find that the conviction is based on
1 (2021) 10 SCC 725
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alleged last seen evidence, the conduct of the applicant pre and
post the incident and on the false defence allegedly taken by the
applicant. It is the duty of the prosecution to prove its case
beyond reasonable doubt and that the defence of the applicant
will only be an additional link to the legal and cogent evidence
adduced by the prosecution.
5 Considering the evidence that has come on record, we find
deem it appropriate to suspend the sentence of the applicant and
to enlarge her on bail, pending the hearing and final disposal of
her appeal, on the following terms and conditions :-
ORDER
i) The applicant be enlarged on bail on furnishing P.R.Bond in
the sum of Rs.20,000/- 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;
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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.
6 The application is allowed in the aforesaid terms and is
accordingly disposed of.
7 All concerned to act on the authenticated copy of this order.
(V. G. BISHT, J.) (REVATI MOHITE DERE, J.)
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