Bombay High Court
Gulam Dastgir Mohammad Sabir vs State Of Maharashtra on 27 April, 2023
Bench: Bharati Dangre
2023:BHC-AS:12951
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1622 OF 2023
IN
CRIMINAL APPEAL NO.491 OF 2023
Gulam Dastgir Mohammad Sabir .. Applicant
Versus
The State of Maharashtra .. Respondent
...
Mr.Chetan S. Damre for the Applicant.
Mr.S.R.Agarkar, A.P.P. for the State.
...
CORAM: BHARATI DANGRE, J.
DATED : 27th APRIL, 2023
P.C:-
1. By the present Application, the Appellant/Applicant
seeks suspension of sentence imposed on him by the Addl.
Sessions Judge, Malegaon in Sessions Case No.2 of 2019 and
pray for his release on bail, during the pendency of Appeal.
The Applicant faced charge under Sections 307 and 326
of IPC. However, he came to be convicted for committing an
offence under Section 326 and sentenced to undergo R.I. for
seven years and to pay fne of Rs.20,000/-, in default of
payment of fne, to undergo R.I. for a term of two years.
M.M.Salgaonkar
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2. On hearing the learned counsel for the Applicant and on
perusal of the impugned judgment as well as the notes of
evidence, it is evidently clear that the case of the prosecution
rested upon the testimony of PW 4 exclusively, as he is the
injured person. The other eye witnesses i.e. PW 1, PW 2 and
PW 3 turned hostile and were subjected to cross-examination
by the prosecution, but the learned Judge has admitted that no
evidence in favour of the prosecution could be elicited from
them.
PW 4 is the injured and when his testimony is carefully
gone into, he has given certain admissions, which create a
noticeable dent in the prosecution case.
In the cross examination, he admits that when the
incident took place, it was dark and since there was a crowd,
he could not say defnitely as to who has done what. He also
admitted that since he knew the Accused, who reside in his
lane and was acquainted to him, he has inadvertently stated
that he assaulted him. Subsequently, he denied the suggestion
that he was not assaulted by the Accused on hands, head and
stomach.
As such, his evidence is required to be appreciated in the
light of the surrounding circumstances.
3. PW 7, the Medical Offcer, deposed that while he was on
duty on 06/07/2018, the injured was brought to him and on
examining him, he issued the Injury Certifcate. Pertinent to
note that the incident took place on 07/07/2018.
Apart from this, the said witness has given an admission
M.M.Salgaonkar
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to the effect that except injury No.1, all other injuries are
simple.
4. The learned Judge has failed to consider lacunae in the
case of the prosecution and has returned a fnding, by
recording that though an admission comes from the injured
witness that he was not able to say with certainty as to what
act was committed by whom, the learned Judge has recorded
that said admission cannot be stretched to such an extent that
no assault was made by the Accused.
There appears to be an erroneous assumption of certain
facts, which is not permissible in criminal trial and prima
facie, the learned Judge has fallen into a grave error in
appreciating the evidence.
In any case, since it would be a matter of Appeal, I deem
it appropriate to grant the application. Hence, the following
order.
: ORDER :
1. Interim Application is allowed.
2. The sentence imposed on the Applicant vide judgment
dated 04/03/2023, passed in Sessions Case No.2 of 2019 is
suspended.
3. During the pendency of the Appeal, the Applicant be
released on bail on furnishing P.R.Bond to the extent of
Rs.25,000/- with one or more sureties in the like amount.
( SMT. BHARATI DANGRE, J.)
M.M.Salgaonkar
