Bombay High Court
Shankar Madan Zare vs State Of Maharashtra on 22 December, 2023
Bench: Prakash D. Naik, N. R. Borkar
2023:BHC-AS:39219-DB
911-IA-3952-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 3952 OF 2023
IN
CRIMINAL APPEAL NO. 135 OF 2020
Shankar Madan Zare ...Applicant/Appellant
Versus
The State of Maharashtra ...Respondent
....
Mr. Aniket Nikam i/by Mr. Vivek N. Arote, Advocate for the
Applicant/Appellant.
Mrs. M. M. Deshmukh, Addl. P.P. for the Respondent - State.
....
CORAM : PRAKASH D. NAIK, &
N. R. BORKAR, JJ.
DATE : 22nd DECEMBER, 2023.
P.C.:
1. This is an application for suspension of sentence and grant of
bail during the pendency of Appeal preferred by the applicant
challenging the judgment of conviction dated 6th December 2019.
2. The applicant has been convicted for offence punishable
under Sections 302 of Indian Penal Code (for short "IPC") and
sentenced to suffer imprisonment of life. He is also convicted for
offence under Section 5(g) & 5(i) r/w Section 6 of the Protection of
Children from Sexual Offences Act, 2012 (for short 'POCSO Act')
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and sentenced to suffer imprisonment for 10 years.
3. The prosecution case is that the deceased was minor boy
aged around 15 years. He was found dead. He has sustained
several injuries. He was sexually assaulted. During the course of
investigation, the applicant and the co-accused were arrested. They
were charge-sheeted.
4. The previous application for suspension of sentence and
grant of bail preferred by the applicant was withdrawn vide order
dated 7th July 2021. The said order indicate that after arguing the
application for some time, the application was not pressed. It was
disposed of as not pressed. Liberty was granted to mention the
matter for final hearing.
5. Learned Advocate for the applicant submitted that the
applicant is in custody for more than 8 years. The co-accused has
been granted bail by suspending sentence. There is no eye witness
to the incident. The case is based on circumstantial evidence. The
prosecution is primarily lying upon two circumstances. The first
circumstance is that there is recovery of iron rod. However,
evidence of PW-6 would indicate that there is discrepancy in
respect of the said statement. PW-6 does not seem that there was
any mark/number on the iron road which was allegedly used in
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commission of crime. PW-7 has stated that there were no blood
stains on the iron rod. There is no panchanama with regards to the
reopening of the seal. The clothes were recovered from the
relatives of the accused. The relatives are not examined. This
recovery cannot be termed under Section 27 of the Evidence Act.
The applicant is in custody for substantial period of time. The
Appeal is not heard. Considering the nature of evidence against
the applicant, sentence may be suspended.
6. Learned A.P.P. submitted that the previous application for
suspension of sentence was rejected by this Court. Although there
is eye witness to the incident the case is based on strong
circumstantial evidence. The victim was the boy aged around 15
years. He was brutally assaulted. He was also sexually assaulted.
The previous application was rejected before one an half years.
There is no change in circumstance, hence the application may be
rejected.
7. The previous application was disposed of on 7 th July 2021 as
the Court after arguing the matter for some time would indicate
that the Court was not inclined to suspend the sentence. The
offence is of serious nature. It is the prosecution case that minor
boy was murdered after he was sexually assaulted. The
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post-mortem report indicate that he has suffered several injuries
which indicate that the assault was brutal. It is true that the case is
based in circumstantial evidence. There is recovery of weapon
purportedly used in commission of crime. The clothes of the
accused were having human blood. The discrepancies as urged by
the applicant will have to be appreciated while final hearing of the
Appeal. Considering these circumstances, we are not inclined to
allow this application.
ORDER
Interim Application No.3952 of 2023 is rejected and
stands disposed of.
(N. R. BORKAR, J.) (PRAKASH D. NAIK, J.)
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