Sombahaddur Budhhibahadur Tamang And ... vs State Of Maharashtra
2023 Latest Caselaw 13218 Bom

Bombay High Court

Sombahaddur Budhhibahadur Tamang And ... vs State Of Maharashtra on 21 December, 2023

Author: Revati Mohite Dere

Bench: Revati Mohite Dere, Gauri Godse

2023:BHC-AS:39158-DB

                                                                                8. IA 823-2023.doc


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION
                                 INTERIM APPLICATION NO. 823 OF 2023
                                                       IN
                                     CRIMINAL APPEAL NO. 359 OF 2017


                1. Sombahaddur Budhhibahadur Tamang
                2. Samu Garbhu Tamang @ Lama                        ...Applicants

                       Versus

                The State of Maharashtra                            ...Respondent

                Mr. Nitin Gaware Patil a/w Mr. Anandmaya Dhorde i/b Mr.
                A.D.Nagode, for the Applicants.

                Mrs. P.P.Shinde, A.P.P for the Respondent-State.

                                                CORAM : REVATI MOHITE DERE &
                                                        GAURI GODSE, JJ.
                                                DATE : 21st DECEMBER, 2023


                ORAL ORDER (PER : REVATI MOHITE DERE, J.) :

1. Heard learned Counsel for the parties.

2. By this application, the applicants seek suspension of their

sentence and enlargement on bail, pending the hearing and final

8. IA 823-2023.doc

disposal of their aforesaid appeal.

3. The applicants, vide Judgment and Order dated 18 th

February, 2017, passed by the learned Additional Sessions Judge,

Pune, in Sessions Case No. 666 of 2011, have been convicted as

under:-

- for the offences punishable under Sections 302 r/w 120B of the

Indian Penal Code, to suffer rigorous imprisonment for life and to

pay a fine of Rs.10,000/- each, in default, to suffer further rigorous

imprisonment for two years;

- for the offences punishable under Sections 449 r/w 120B of the

Indian Penal Code, to suffer rigorous imprisonment for life and to pay

a fine of Rs. 10,000/- each, in default, to suffer further rigorous

imprisonment for two years;

- for the offences punishable under Sections 392 r/w 120B of the

Indian Penal Code, to suffer rigorous imprisonment for seven years

and to pay a fine of Rs. 10,000/- each, in default, to suffer further

rigorous imprisonment for two years;

8. IA 823-2023.doc

All the aforesaid sentences were directed to run concurrently.

4. Perused the papers. Admittedly, the prosecution case rests

entirely on circumstantial evidence i.e. the evidence of last seen by the

daughter of the owner of the house and the watchman of the building

and recovery of gold ornaments / cash. Learned Counsel for the

applicants submits that the applicants are in custody for about 12 ½

years and as such, place reliance on the judgment of the Apex Court in

the case of Saudan Singh V/s. The State of Uttar Pradesh1.

5. Learned Counsel for the applicants submits that there are

several discrepancies as far as recovery of gold ornaments at the

instance of the applicants are concerned, and as such, the said

evidence of recovery appears to be suspicious. There are only two

circumstances relied upon by the prosecution i.e. of last seen and

recovery of gold ornaments. As far as long incarceration is concerned,

it is not in dispute that the applicants are in custody for about 12½

1 2022 SCC OnLine SC 697

8. IA 823-2023.doc

years. The appeal is of the year 2017 and the prospect of the appeal

being heard in the immediate near future appears to be bleak.

6. Considering the aforesaid and the fact, that the applicants

are in custody for 12½ years, the application is allowed and the

applicants sentences are suspended and they are enlarged on bail,

pending the hearing and final disposal of their appeal, on the

following terms and conditions;

                                                   ORDER

                           i)               The   applicants   be   enlarged on bail on

furnishing P.R. Bond in the sum of Rs. 25,000/- each with

one or two local sureties in the like amount;

ii) The Applicants shall report to the trial Court,

once in three months on the day/date specified by the trial

Court, till their Appeal is finally disposed of;

iii) The Applicants shall keep the trial Court informed

8. IA 823-2023.doc

of their 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.

7. The Application is allowed in the aforesaid terms and is

accordingly disposed of.

8. All concerned to act on the authenticated copy of this

order.

            GAURI GODSE, J.                               REVATI MOHITE DERE, J.