Santosh Sukhdeo Borkar vs The State Of Maharashtra
2023 Latest Caselaw 10298 Bom

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varsha        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                   INTERIM APPLICATION NO. 37 OF 2019
                                   IN
                     CRIMINAL APPEAL NO. 813 OF 2017

         Santosh Sukhdev Borkar                         ... Applicant
                    vs.
         The State of Maharashtra                       ... Respondent

         Mr. Ravindra S. Pachundkar, for the Applicant.
         Mr. J.P. Yagnik, A.P.P for the State.

                                 CORAM : REVATI MOHITE DERE &
                                        GAURI GODSE, JJ.

                                 DATED : 5th OCTOBER, 2023

         P.C. :-


         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 the aforesaid appeal.


         3.    The applicant vide Judgment and Order dated 2 nd August

         2017, passed by learned Additional Sessions Judge, Malshiras, in

         Sessions Case No. 27 of 2015, has been convicted and sentenced
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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. 2,000/- in default, to suffer

      imprisonment for 1 year;


      -      for the offence punishable under Section 201 of the

      Indian Penal Code, to suffer rigorous imprisonment for 3

      years and to pay fine of Rs.1,000/- in default, to suffer

      simple imprisonment for 6 months.


          Both the    aforesaid sentences were directed to run

      concurrently.


4.   Perused the papers. The prosecution case rest entirely on

the circumstantial evidence. According to the prosecution, the

deceased-Rani and Applicant- Santosh Sukhdev Borkar were in

an illicit relationship and that he was threatening the deceased

and her children for not disclosing the same to any person. It is

further alleged that on 23rd May 2014, deceased-Rani dropped

her children at Palasmandal and thereafter went with two
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persons on the motor-cycle after which she did not return.


5.     According to the prosecution, after the deceased-Rani

went missing, her brother lodged missing complaint on 25 th May

2014. When PW-1-Machindra Waghmode learnt that his wife

had gone missing, and when            she did not return from

Palasmandal at Solapur, he made inquiries. It is alleged that he

learnt that the applicant used to visit his residence in his absence.

It appears that on 12th June 2014, PW-1- Machindra Waghmode

lodged an FIR against the applicant and an unknown person.

PW-1 received information from the police that a dead body is

lying at Nira River, Tawashi. Pursuant thereto, the applicant

alongwith another co-accused came to be arrested. It is alleged by

the prosecution that the applicant alongwith one unknown

person assaulted deceased-Rani with a stone and caused an injury

on her head and as such her death. Thereafter, the accused are

alleged to have thrown the dead body in Nira river. As far as the

co-accused is concerned, he has been acquitted. The prosecution

relied upon the evidence of PW-7-Sugadabai Netwe who has

stated that the applicant was last seen with the deceased-Rani and
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another person. It appears that in PW-7-Sugadabai Netwe's

statement which was recorded on 15 th June 2014, there is an

omission with respect to what has deposed by her, in her

evidence. Apart from this, there is joint recovery of the stone at

the instance of the applicant and the co-accused and as such, the

recovery becomes doubtful. The applicant is in custody since

more than 9 years. His appeal is of the year 2019 and is not

likely to be heard in the immediate near future.


6.         Considering the aforesaid and in particularly having

regard to the fact, that the applicant is in custody for more than

9 years, the application is allowed and the applicant's sentence is

suspended and he is enlarged on bail, pending the hearing and

final disposal of his Appeal, 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;

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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.

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.)

Signed by: Varsha V. Rajguru Designation: PA To Honourable Judge Date: 06/10/2023 17:42:18