Bombay High Court
Ishwar S/O Mahadeo Kuthe vs State Of Mah. Thr. Its Pso, Ps, ... on 14 March, 2022
Bench: V.M. Deshpande, Amit B. Borkar
1 6.Appa.738.21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APPA) NO.738/2021
IN
CRIMINAL APPEAL NO.554/2021
Ishwar s/o. Mahadeo Kuthe Vs. State of Maharashtra
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Shri S. V. Sirpurkar, Advocate for Appellant/Applicant.
Shri T. A. Mirza, A.P.P. for Respondent/Non-applicant-State.
CORAM : V. M. DESHPANDE AND
AMIT BORKAR, JJ.
DATE : 14/03/2022.
1. This is an application for suspension of
substantive jail sentence and for grant of bail.
2. Heard Shri S. V. Sirpurkar, learned counsel for
the appellant/applicant and Shri T. A. Mirza, learned A.P.P.
for the respondent/State.
3. The appellant/applicant was convicted by the
learned Sessions Judge, Chandrapur in Sessions Case
No.82/2018 by judgment and order of conviction dated
03/08/2020 whereby the learned Judge found that the
appellant is guilty of committing murder of his wife Indu
and therefore, after recording the reasons, sentenced him
to suffer imprisonment for life.
4. This appeal was listed before this Court on
15.12.2021. On that day this Court (Coram : M. S. Sonak
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and Pushpa V. Ganediwala, JJ.) admitted the appeal and
called for the record and proceedings for consideration of
the application for suspension of substantive jail sentence
and accordingly, the record and proceedings are received.
Today, when this application was taken up for
consideration, the record and proceedings are placed
before us for our consideration.
5. The learned counsel for the appellant/applicant
and the learned A.P.P. took us through the relevant
evidence and the documents on record for the
consideration of this application.
6. Admittedly, the applicant is the husband of
deceased - Indu. The date of the incident is 23.08.2018.
The law was set into motion by the applicant himself by
lodging his oral report at Police Station, Bramhapuri on
23.08.2018 itself, which is at Exh. 49 culminating into the
registration of crime against unknown person vide
Crime No.748/2018 for the offence punishable under
Section 302 of the Indian Penal Code.
7. As per First Information Report, the applicant is
having 2 ½ acre land and from the marriage with the
deceased, he is having two daughters Shubhangi 22 years
old, Payal 20 years old and one son Kunal 19 years old. As
per the report, on 23.08.2018, at 7 O' clock in the morning,
he took his wife for cleaning left-out "Tur" in his
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agricultural field and thereafter, he came to his house.
According to the First Information Report at 5 O'clock,
when he went to his agricultural field to fetch back his
wife, he could not notice her and after searching, he found
that his wife was lying on boundary in water, therefore, he
called the neighbours of the agricultural field. It was found
by him that there was a wound on her head. Thereafter,
the body of the deceased was taken to the hospital.
8. During the course of the investigation, the
Investigating Officer recorded statement of one Ramsingh,
whose presence is mentioned by the applicant in the First
Information Report itself. The statement is recorded on
24.08.2018 i.e. on the next date and in which he claimed
that he has seen the incident and he is an eye witness in
respect of the assault made by the applicant upon his wife.
Therefore, the applicant was arrested. Postmortem report
prepared by Autopsy Surgeon Sameer Nakhade (PW-3)
shows one injury on left temporal region of the deceased.
9. Prima facie, we are of the view that the evidence
of Ramsingh (PW-2) does not inspire confidence to show
that he must have actually witnessed the incident of assault
allegedly made by the applicant on his wife. His evidence
shows that he has actually seen the incident in the early
morning hour. His evidence shows that after the incident
which he has witnessed, the applicant left the place of the
incident and he alone was there at this place. His evidence
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also suggest that Ramsingh is having cell phone with him.
It is really unnatural conduct on the part of this man not to
disclose such a serious incident which he has seen in which
one lady has lost her life, to the police or anybody till
24.08.2018. In view of this, according to us, at least, at
this stage, the case of the applicant needs consideration.
Further there is no criminal antecedents at the discredit of
the applicant. The applicant is in jail from 24.08.2018 till
today.
10. In view of the above discussion, especially in
respect of the evidence of Ramsingh (PW-2), we are of the
view that the applicant has made out a case for suspension
of substantive jail sentence and for grant of bail. Hence,
we pass the following order.
ORDER
i] Application is allowed.
ii] The judgment and order of conviction in
Sessions Case No.82/2018 dated 03.08.2020 passed by the
learned Sessions Judge, Chandrapur shall remain
suspended during the pendency of this appeal.
iii] The applicant Ishwar S/o. Mahadeo Kuthe be
released on bail on he executing P. R. bond of Rs.5000/-
with one solvent surety in the like amount.
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iv] The applicant shall report to the concerned
Police Station once in six months during the pendency of
this appeal.
v] At the time of final hearing, the applicant shall
remain personally present before this Court.
11. All observations made in this order are, prima
facie, and only for the decision of the present application.
12. With this directions, the application is
disposed of.
JUDGE JUDGE
RGurnule
Digitally signed byRANJANA
MANOJ MANDADE
Signing Date:14.03.2022
17:12
