Bombay High Court
Sudhir Namdeo Kale vs The State Of Mah. Thr. Pso Ps ... on 10 November, 2023
Bench: Vinay Joshi, M. W. Chandwani
2023:BHC-NAG:16458
Order 1011appa913.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION [APPA] NO. 913/2023
IN CRIMINAL APPEAL NO. 629/2022.
Sudhir Namdeo Kale
-VERSUS-
The State of Maharashtra.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri U.P. Dable, Advocate for the Applicant/Appellant.
Shri J.Y. Ghurde, A.P.P. for the Respondent/State.
CORAM : VINAY JOSHI AND
M.W. CHANDWANI, JJ.
DATE : NOVEMBER 10, 2023.
Heard.
2. This is an application for suspension of
execution of sentence passed in Sessions Trial
No.61/2021 by the Additional Sessions Judge,
Amravati by which the applicant/appellant was
convicted for the offence punishable under Section
302 of the Indian Penal Code, and sentenced to
suffer imprisonment for life along with fine.
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Order 1011appa913.23
3. It is prosecution case that the applicant
has allegedly committed murder of his own wife.
On the date of occurrence the applicant along with
his two minor children and wife were in the house.
The applicant allegedly hit the deceased by means
of a big stone causing her death. The prosecution
has led evidence of as many as 9 witnesses to
establish the guilt. It is the contention of the
applicant that the prosecution has failed to
establish the chain completely to exclude the
innocence of the applicant. The learned Counsel
for the applicant would be submit that the trial
Court utterly erred in placing the burden on the
accused, rather not considered the initial burden
which lies on the prosecution. It is argued that the
motive has not been proved as well as the recovery
of blood stained clothes is doubtful. Besides that,
it is submitted that two minor children of applicant
have become shelter-less and till date the applicant
has completed three years in jail.
4. The learned Counsel for the applicant
also pointed out that earlier this Court has
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Order 1011appa913.23
declined to exercise the discretion, however, a
period of one year has lapsed and now there are
no chances of appeal coming for hearing in near
future.
5. The learned Counsel for the applicant
has relied on decisions of this Court in cases of
(1)Sunil Latari Khuje .vrs. State of Maharashtra -
2016 [4] Mh.L.J.(cri) 150 and (2)Gunwant @
Dhudaku Tryambak Patil .vrs. State of
Maharashtra - 2017 [6] Mh.L.J. (Cri) 227, to
impress that the burden lies on the defence is
lighter as compared to the prosecution.
6. The learned A.P.P. has resisted the
application by contending that it is a case of
custodial death and thus, in view of Section 106 of
the Evidence Act, the burden lies on the accused
to explain the circumstances. He would submit
that blood stained clothes of the accused have
been seized. Chemical Analyzer's report supports
prosecution case. Moreover, there is motive for
commission of crime.
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Order 1011appa913.23
7. With the assistance of both sides, we
have examined the entire evidence, as well as the
reasoning recorded by the trial Court while
arriving on the finding of guilt. Undisputedly the
case is based on circumstantial evidence. The law
in this regard is well settled, as the prosecution has
to establish all the circumstances and chain of
events must be complete so as to exclude every
hypothesis of guilt.
8. The learned Trial Court has based the
conviction mainly on the ground of failure of
accused to discharge the burden, and finding of
blood on the clothes of accused. One should not
forget that initial burden always lies on the
prosecution and the burden which would lie on the
accused would be comparatively lighter. The
defence counsel has pointed out that the blood
group of the accused is also of "A" group, which is
similar of the deceased. He took us through
admission of panch witnesses that blood stains
were not seen on the clothes. The defence has
disputed the cause of death itself. It is submitted
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that there is every possibility of accidental death.
In this regard, he has taken us through certain
admissions to impress that big stones were kept on
the tin roof and chances of falling stones cannot be
ruled out.
9. The prosecution has examined two
children of the deceased, however, they did not
support the prosecution case. Rather they have
supported the defence story. Obviously, it is a
matter of appreciation as the accused is their
father.
10. The accused is in jail from last three
years. The appeal will take its own time for
hearing on merits. Both children of accused are
staying at the mercy of relatives. Considering all
these peculiar facts and taking into account that
from last three years the applicant is in jail,
discretion can be used. Arguable points have been
raised, in case the appeal is allowed the position
would become irreversible. Hence, we deem it
appropriate to exercise our discretion for
suspending the sentence, and pass the following
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Order 1011appa913.23
order.
11. The execution of the sentence imposed
by the Additional Sessions Judge, Amravati in
Sessions Trial No.61/2021 by judgment and order
dated 04.07.2022 by which the applicant
/appellant was convicted and sentenced to suffer
imprisonment for life along with fine for the
offence punishable under Section 302 of the Indian
Penal Code, is hereby suspended till disposal of
appeal.
In the meanwhile the
appellant/applicant be released on bail on his
furnishing P.R. Bond in the sum of Rs.25,000/-
with one or two sureties in the like amount.
12. Criminal Application is accordingly
allowed and disposed of.
JUDGE JUDGE
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 10/11/2023 17:06:41
Rgd.
