Shailesh Piraji Kasbe vs The State Of Maharashtra
2022 Latest Caselaw 10811 Bom

                                                       Cri.Appln. No.2020/2022
                                       :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


              CRIMINAL APPLICATION NO.2020 OF 2022 IN
                  CRIMINAL APPEAL NO.224 OF 2021


 Shailesh s/o Piraji Kasbe                            ... APPLICANT

          VERSUS

 The State of Maharashtra                             ... RESPONDENT

                                .......
 Mr. N.S. Ghanekar, Advocate for applicant
 Mr. A.M. Phule, A.P.P. for respondent - State
                                .......

                                  CORAM :        R. G. AVACHAT, AND
                                                 R. M. JOSHI, JJ.

                                  DATED :        17th OCTOBER, 2022.

 ORDER:

Heard. This is an application for suspension of

execution of substantive sentences of imprisonment. The

applicant has been convicted by learned Additional Sessions

Judge-1, Nanded in Sessions Case No.139/2018, by judgment

and order dated 23/2/2021, for the offences punishable under

Sections 302 r/w 149, 341 r/w 149, 143 r/w 149, 144 r/w

149, 147 r/w 149, 148 r/w 149 of the Indian Penal Code and

sentenced to suffer maximum punishment of imprisonment

for life and to pay fine of Rs.1000/-, in default to suffer

further R.I. for 3 months. The Criminal Appeal filed by the

Cri.Appln. No.2020/2022 :: 2 ::

applicant has been admitted by this Court.

2. The learned counsel for the applicant would

submit that, the case is based on eye witness account of three

persons. All the three were chance witnesses. P.W.13

Shankar was one of them. His statement was recorded by

investigating officer, one and half month after the incident.

Other two witnesses namely P.W.3 Sunil and P.W.9 Amit were

friend and cousin of the deceased respectively. Both of them

claimed to have witnessed the incidence. None of them

intervened to rescue the deceased, nor did they shift the

deceased to hospital. When father of the deceased came on

the scene, he did not state in his evidence about presence of

these two witnesses. According to the learned counsel, both

these witnesses were present at the time of funeral of the

deceased. Police were present that time. None of them came

forward to disclose the police to have had witnessed the

incidence. It is only seven days after the incidence, they on

their own approached the police and claimed to be the eye

witnesses. According to learned counsel, the applicant is in

jail for little over four years (including bail period on account

of pandemic Covid-19). It will take time for hearing of the

appeal. Presence of the witnesses, on the evidence of whom

the prosecution relies, is doubtful. The applicant has no

Cri.Appln. No.2020/2022 :: 3 ::

criminal antecedents. He, therefore, urged for grant of the

application.

3. The learned A.P.P. would, on the other hand,

expressed strong reservations to allow the application.

According to him, the deceased suffered eight injuries. Our

attention was drawn to Column No.17 of post mortem report.

According to him, there were three eye witnesses to the

incident. All the three gave graphic details as to how the

applicant and others assaulted the deceased. Their evidence

is consistent one. The trial Court, on appreciation of their

evidence, convicted the applicant herein.

4. Perused the evidence of P.W.3 Sunil and P.W.9

Amit and P.W.13 Shankar. There is no recovery of any

incriminating article at the instance of the applicant.

Statement of P.W.13 Shankar was recorded one and half

month after the incident. We, therefore, do not propose to

rely on his evidence for deciding the present application.

5. As regards evidence of P.W.3 Sunil and P.W.9 Amit

is concerned, their statements have also been recorded seven

days after the alleged incidence. Both these witnesses,

according to them, were present at the scene of offence while

the police had arrived there. They did not come forward to

Cri.Appln. No.2020/2022 :: 4 ::

inform the police how the incidence took place and who were

the culprits. Both of them were present for the funeral of the

deceased. Police officials were also present for funeral. That

time also these two witnesses did not share anything with the

police authorities. Both of them have not intervened to save

the deceased, nor did they rush the deceased to the hospital.

It is only after seven days of the incidence, both of them, on

their own, approached the police and claimed to have

witnessed the incidence. When the father of the deceased

had reached the scene of offence, he did not state in his

evidence about presence of these two witnesses there.

Nothing incriminating has been recovered at the instance of

the applicant. The applicant is in jail for little over four years

(including bail period on account of pandemic Covid-19). It is

only during hearing of the appeal finally, the evidence of three

eye witnesses could be scrutinised closely so as to find

whether they were really present at the scene of offence and

witnessed the incidence.

6. It will take at least eight to ten years for the

present appeal to come up for hearing by its turn. For all

these reasons, we are inclined to grant the application. Hence

the order :

Cri.Appln. No.2020/2022 :: 5 ::

ORDER

(i) The Criminal Application is allowed.

(ii) Pending the appeal, the execution of the substantive

sentences imposed by learned Additional Sessions Judge-1,

Nanded in Sessions Case No.139/2018, by judgment and

order dated 23/2/2021 shall stand suspended so far as the

present applicant Shailesh Piraji Kasbe and 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. Bail before the trial Court.

          ( R. M. JOSHI, J. )                ( R. G. AVACHAT, J. )




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