Bombay High Court
Rama Kisan Chavan vs The State Of Maharashtra on 20 February, 2023
Bench: Nitin W. Sambre, R. N. Laddha
bipin prithiani
ia-952.21 and ia-3646.22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 952 OF 2021
IN
CRIMINAL APPEAL NO. 72 OF 2020
Shekhar Prakash Ahire
Aged about 27 years,
Residing at Shramik Nagar,
Canal Road, Near Maruti Temple,
Jail Road, Nashik Road, District Nashik
At present undergoing the
Sentence imposed upon him at
Nashik Road Central Prison, Nashik ... Applicant
Versus
State of Maharashtra
(at the instance of
Senior Inspector of Police,
Nashik Road Police Station
vide C.R. No. I-26 of 2017) ... Respondent
WITH
INTERIM APPLICATION NO. 3646 OF 2022
IN
CRIMINAL APPEAL NO. 1080 OF 2022
Rama Kisan Chavan,
Aged about 47 years,
Residing at Sankalp Housing
Society, Falt No.B-3, Near
Panchkrishna Lawans, Konark Nagar,
Adgaon Shivar, Nashik, District Nashik
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at present under going the sentence
Imposed upon them at Nashik Road
Central Prison, Nashik ... Applicant
Versus
State of Maharashtra
(at the instance of
Senior Inspector of Police,
Nashik Road Police Station
vide C.R. No. I-26 of 2017) ... Respondent
Mr. Nitin Sejpal a/w Akshata Desai for Applicant in IA/952/2021.
Mr. Aniket Vagal for the Applicant in IA/3646/2022.
Mr. A. R. Kapadnis, APP for the Respondent-State.
CORAM: NITIN W. SAMBRE &
R. N. LADDHA, JJ.
DATE : 20 FEBRUARY 2023
Order (Per R. N. Laddha, J.) :
The applicants have preferred these Applications for
suspension of sentence and release on bail during the pendency of
the their respective Appeals.
2. The trial Court, by the judgment and order dated 20
December 2019 in Sessions Case No. 244 of 2017, convicted the
applicants/accused, along with co-accused Anil Digraskar, for the
offences punishable under Sections 302, 120B, 323 read with
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Section 34 of the Indian Penal Code and Sections 37(1)(3) read
with 135 of the Bombay Police Act.
3. According to the prosecution, on 20 January 2017 at about
9:15 pm at Triveni Park, Nashik Road, Nashik, the accused
persons, in furtherance of their common intention, committed the
murder of Surendra alias Gharu Siddaram Shejwal.
4. In Niranjan Singh & Anr. v/s. Prabhakar Rajaram Kharote &
Ors.1, it was annunciation that a detailed examination of evidence
and detailed documentation of the merits should be avoided while
passing orders on bail applications.
5. Considering the above principle, we have heard Mr Nitin
Sejpal and Mr Aniket Vagal, learned counsel for the applicants and
Mr A. R. Kapadnis, learned Additional Public Prosecutor for the
respondent-State.
6. Learned counsel for the applicants, in unison, submitted that
the learned trial Court had given undue weightage to the testimony
of Gaurav Khajekar (PW12). Though the alleged incident occurred
on 20 January 2017, Gaurav PW12, on 28 January 2017, for the
first time, disclosed about witnessing the incident. They invited
our attention to the cross-examination of PW12 and submitted that
1 (1980) 2 SCC 559
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the conduct of this witness was quite unnatural as he left the
deceased who was related to him in a pool of blood. He was not
bothered to take him to the hospital and left the spot. Additionally,
his conduct in not informing the Police and the mother of the
deceased Surendra is another factor which casts doubt on his
testimony.
7. It is submitted that once the substantive evidence is
discarded, corroborative evidence like recovery of incriminating
articles is of no consequence. In their view, even otherwise, the
recovery effected by the investigating agency from all the accused
from the same place has lost its significance for non-compliance
with the mandatory requirement of Section 27 of the Evidence Act.
8. Mr A. R. Kapadnis, the learned APP for the respondent-
State, submitted that non-disclosure of the incident to the Police
immediately could be a ground to discard the evidence of PW12.
According to him, the impugned conviction is based on the
testimony of PW12, an eyewitness to the incident and other
circumstantial evidence. It is submitted that there is corroboration
to the ocular version of PW12 through the recovery of
incriminating articles. In their view, recoveries cannot be doubted
merely because the incriminating articles were recovered from the
same area.
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ia-952.21 and ia-3646.22.doc
9. Apart from other witnesses, the prosecution has produced
three eyewitnesses in support of its case, namely Vikram Porje
(PW1), Santosh Pille (PW17) and Gaurav Khajekar (PW12). PW1
and PW17, however, did not support the prosecution's case to the
extent that the accused had assaulted the deceased. This case
primarily hinges on the testimony of eyewitness Gaurav Khajekar
(PW12). He stated that he did not take the deceased to the
hospital, nor he informed about the incident to the Police or
relatives of the deceased. He also stated that he had attended the
deceased's funeral and met the mother of Surendra and his relatives
to console them. He also stated that he did not go to the hospital to
see the deceased Surendra. However, he did not disclose the
alleged fact of witnessing the incident till 28 January 2017.
Further, it revealed from the record that the recovery effected by
the investigating agency from all the accused from the same area.
10. Considering these facts, the case of the suspension of
sentence and the grant of bail is made out. The Applications are,
accordingly, allowed in the following terms:
ORDER
(a) During the pendency of the present Appeals, a
substantive sentence imposed upon Applicants is
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ia-952.21 and ia-3646.22.doc
suspended, and they be released, on bail, on the
execution of a P.R. Bond of Rs.25,000/- each, with one
or two solvent sureties in the like amount, to the
satisfaction of the learned trial Court.
(b) The Applicants shall remain present before this
Court as and when directed.
9. Interim Applications stand disposed of.
R. N. LADDHA, J. NITIN W. SAMBRE, J.
Digitally signed by
BIPIN BIPIN DHARMENDER
DHARMENDER PRITHIANI
PRITHIANI Date: 2023.02.24
13:26:06 +0530
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20 February 2023
