Bombay High Court
Ashwinikunal Ashokkumar Singh vs State Of Maharashtra on 20 December, 2023
Author: Revati Mohite Dere
Bench: Revati Mohite Dere, Gauri Godse
Digitally
signed by
SHAGUFTA
2023:BHC-AS:39147-DB
SHAGUFTA QUTBUDDIN
QUTBUDDIN PATHAN
PATHAN Date: 15-IA-2734-2023.doc
2023.12.19
00:40:54
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2734 OF 2023
(For Bail)
IN
CRIMINAL APPEAL NO. 845 OF 2023
Ashwinikunal Ashokkumar Singh ...Applicant
Versus
The State of Maharashtra ...Respondent
Mr. Mohammed Umar Kazi a/w Mr. Abdul Wahab Shaikh for the
Applicant
Mr. J. P. Yagnik, Addl.P.P for the Respondent-State
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
WEDNESDAY, 20th DECEMBER 2023
ORAL ORDER (Per Revati Mohite Dere,J.) :
1 Heard learned counsel for the parties.
2 By this application, the applicant seeks suspension of
his sentence and enlargement on bail, pending the hearing and
final disposal of his aforesaid appeal.
15-IA-2734-2023.doc
3 The applicant, vide judgment and order dated 19 th
June, 2023, passed by the learned Additional Sessions Judge at
Kalyan, Thane, in Sessions Case No. 128/2015, has been
convicted alongwith other co-accused 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. 5,000/- each, in default, to suffer
rigorous imprisonment for six months;
-- for the offence punishable under Section 120B r/w 34
of the Indian Penal Code, to suffer rigorous imprisonment
for life and to pay fine of Rs. 5,000/- each, in default, to
suffer rigorous imprisonment for six months;
-- for the offence punishable under Section 394 r/w 34
of the Indian Penal Code, to suffer rigorous imprisonment
for ten years and to pay fine of Rs. 2,000/- each, in default,
to suffer rigorous imprisonment for six months;
15-IA-2734-2023.doc
-- for the offence punishable under Section 449 r/w 34
of the Indian Penal Code, to suffer rigorous imprisonment
for ten years and to pay fine of Rs. 2,000/-, in default, to
suffer rigorous imprisonment for six months;
All the aforesaid sentences were directed to run
concurrently.
4 Perused the papers. The prosecution case rests
entirely on circumstantial evidence. As far as the applicant is
concerned, the prosecution has relied on three circumstances qua
the said applicant, i.e. (i) recovery of articles i.e. imitation
jewellery of the deceased and a cutter i.e. the weapon with which
the deceased was assaulted, at the instance of the applicant;
(ii) extra-judicial confession made by A1-Virendra to PW11-
Siddhesh Bane; and (iii) the evidence of PW7-Kalpana Borole to
show that the applicant alongwith A1, had visited her residence
with intent to commit robbery/theft, prior to the incident in
question.
15-IA-2734-2023.doc
5 Learned counsel for the applicant also seeks bail on
the ground of parity. He submits that the applicant stands on a
better footing than that of co-accused - Virendra, whose sentence
has been suspended and who has been enlarged on bail by this
Court vide order dated 27th September 2023.
6 Learned A.P.P does not dispute the fact that the role
of the applicant is similar to that of A1 i.e. Virendra, whose
sentence has been suspended and who has been enlarged on bail.
7 Perused the papers. As far as PW11- Siddhesh is
concerned, the said witness, in his examination-in-chief, has
alleged that the applicant had made an extra-judicial confession
to him, however, in his cross-examination, the said witness has
clearly stated that he had not stated the same in his 161
statement. The relevant paragraphs of the evidence of PW 11 are
paras 15 and 16, in which the omissions have been recorded.
15-IA-2734-2023.doc
8 As far as the evidence of PW7-Kalpana is concerned,
she has stated that the applicant alongwith his friend had come at
her residence and had asked for water, however, since one of her
friend stopped by, at her residence, the applicant and his friend
left, after drinking water. She has further stated that when she
was alone in the house after Diwali Festival, she read in the
newspaper that the said boys who had come to her house, were
involved in the murder of one lady. PW7 - Kalpana in her cross-
examination, in paragraph 11 has admitted that she had not told
anything about the accused coming to her house for drinking
water. Her evidence shows that no Test Identification Parade was
held for identification of the accused and that she came to know
the names of the accused from the police.
9 As far as recovery of articles at the instance of the
applicant i.e. imitation jewellery and a cutter, admittedly the CA
report has not been placed on record by the prosecution.
15-IA-2734-2023.doc
10 We have perused the order dated 27 th September
2023 suspending the sentence and enlarging the co-accused-
Virendra, on bail. The evidence against the applicant is similar to
that of co-accused-Virendra.
11 Admittedly, the applicant has no antecedents. The
applicant is in custody since 23 rd October, 2014. The possibility
of the appeal being heard in the immediate near future also
appears to be bleak.
12 Considering the aforesaid evidence on record qua the
applicant as stated aforesaid, the application is allowed and the
applicant's sentence is suspended and he is enlarged on bail 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;
15-IA-2734-2023.doc
ii) The applicant shall report to the trial Court,
once in four months on the day/date specified by the trial
Court, till his 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 an application seeking
cancellation of bail.
13 The Application is disposed of in the aforesaid terms.
15-IA-2734-2023.doc
14 All concerned to act on the authenticated copy of this
order.
GAURI GODSE, J. REVATI MOHITE DERE, J.
