Bombay High Court
Divyesh Prakash Aware vs The State Of Maharashtra on 1 August, 2023
Bench: R.P. Mohite-Dere, Gauri Godse
2023:BHC-AS:21790-DB
Digitally
signed by
VARSHA
VARSHA VIJAY
VIJAY RAJGURU
RAJGURU Date:
2023.08.03
14:57:42
+0545
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varsha IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 801 OF 2019
IN
CRIMINAL APPEAL NO. 742 OF 2019
Divyesh Prakash Aware ... Applicant
vs.
The State of Maharashtra ... Respondents
WITH
CRIMINAL APPEAL NO. 758 OF 2019
Nana Tukaram Borse Natural Guardian of ... Appellant
Ravindra Nana Borse(Since deceased)
vs.
The State of Maharashtra and Ors ... Respondents
Mr Sanghraj Rupawate, i/b Ms Pooja Thakur, for the Applicant.
Ms. S.S. Kaushik, A.P.P for the State.
Mr Sarfaroj Shaikh i/b Mr Sachin Gite, for the Respondent No. 4
in Appeal/758/19.
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
DATED : 1st AUGUST, 2023
P.C. :-
1. Heard learned counsel for the parties.
2. By this application, the applicant seeks suspension of his
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sentence and enlargement on bail, pending the hearing and final
disposal of his aforesaid appeal.
3. The applicant vide judgment and order dated 28 th March
2019, passed by the learned District Judge-9 and Additional
Sessions Judge, Nashik in Sessions Case No. 184 of 2015, has
been convicted and sentenced as under:-
- for the offence punishable under Section 302 of the Indian
Penal Code to suffer rigorous imprisonment for life and to pay
fine of Rs. 25,000/- in default, to suffer simple imprisonment for
one month;
4. Perused the papers. According to the prosecution, the
incident took place on 16th February 2015 in the College Campus
during the Shiv Jayanti festival. It is the prosecution case, that the
applicant alongwith three others assaulted deceased-Ravindra,
resulting in his death. After a full fledged trial, the Applicant was
convicted as stated aforesaid. The prosecution in support of its
case, relies on the evidence of PW-3- Sanket Bagul, a friend of
deceased-Ravindra. According to PW-3-Sanket, there were three
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processions of Shiv Jayanti being celebrated in the college
campus. He has stated that there was dancing going on when, in
one of the procession, quarrel took place and the boys started
running helter skelter. He has further stated that
Ravindra(deceased) alongwith his friend started running towards
the college building; that he saw the applicant running behind
Ravindra with a knife; that the applicant held Ravindra and
assaulted him with a knife, and inflicted two blows, one on the
the chest and the second, on the stomach. He has further stated
that soon after the incident, he and his friend put Ravindra in a
vehicle and took him to a Hospital, at Satpur; that since
Ravindra's condition was serious, the doctor asked them to take
Ravindra to the Civil Hospital, at Nashik; and that on reaching
the Civil Hospital, the doctor declared Ravindra dead. It appears
from the evidence of PW-3-Sanket, that the said witness have not
identified the knife with which Ravindra was assaulted. On a
perusal of the cross-examination of PW-3, it further appears that
his statement was recorded by the police, after almost three
weeks of the incident. PW-3-Sanket, has in cross-examination in
para 10 stated as under:
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"10. It is true to say that the police in between the period
of 16/02/2015 to 11/03/2015 had not given me any written
notice calling upon me to give any statement as regards to
the alleged incident. I have not made any contact with the
police by use of my mobile phone in between the said
period vice versa. It is true to say that I have not felt proper
that in between the said period to go to the police and
inform them about the alleged incident. I have seen the
police in between 16/02/2015 to 11/03/2015. It did not
happen that in between that period I have given
information to the police and they have written down it on
the paper."
4. PW-3-Sanket, has further in his cross-examination stated
that when he reached the Civil hospital, the police were present
at the Civil hospital, however, he did not disclose anything to the
Medical Officer, present at the Civil Hospital, as to how the
incident took place nor did he reveal the names of the person
involved. The applicant is in custody since 2018. The appeal is of
2019 and the same is not likely to be taken up for final hearing,
in the immediate near future.
5. Considering the evidence on record and the fact, that the
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applicant is in custody since 2018, the application is allowed and
the applicant's sentence is suspended and he is enlarged on bail,
pending the hearing and final disposal of his aforesaid 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. 25,000/- 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 the
appeal is finally disposed of;
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
10-appa-801-2019-apeal-742-2019.docx
an application seeking cancellation of bail.
6. The Application is allowed in the aforesaid terms and is
accordingly disposed of.
All concerned to act on the authenticated copy of this
order.
GAURI GODSE, J.) (REVATI MOHITE DERE, J.)
