Bombay High Court
Keharsing Harjindarsing Chudda vs State Of Maharashtra on 9 January, 2024
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
2024:BHC-AS:981-DB
25 ia 494 of 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL INTERIM APPLICATION NO. 494 OF 2023
IN
CRIMINAL APPEAL NO.333 OF 2014
Keharsing Harjindarsing Chudda ... Applicant
Versus
The State of Maharashtra
(At the instance of the Sr.P.I.
Nashik Police Station) ... Respondent
......
Mr.Niranjan S. Mundargi i/b. Ms.Keral Mehta, Advocate for the
Applicant/Appellant.
Mr.R.M. Pethe, APP for Respondent - State.
......
CORAM : REVATI MOHITE DERE &
MANJUSHA DESHPANDE, JJ.
DATE : 9th JANUARY 2024
P.C. :
Heard the 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.
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3 This is the fourth Bail Application preferred by the
Applicant. The applicant's first Bail Application was withdrawn as
this Court (Coram : P.V. Hardas and G.S. Kulkarni, JJ.) was not
inclined to suspend the applicant's sentence and enlarge him on
bail. The said order is dated 31 October 2014. The applicant's
subsequent three Bail Applications were for his release on
temporary bail, on account of his parents illness. The said
applications although rejected, were not on merits. The present
application is filed by the Applicant after nine years, seeking
suspension of the sentence and enlargement on bail, having
regard to his long incarceration.
4 Learned counsel for the Applicant submits that the
Applicant is in custody without remission for about 11 years and
8 months. Learned counsel relied on the Judgment of the Apex
Court in the case of Saudan Singh Vs. State of Uttar Pradesh
passed in Criminal Appeal No.308 of 2022 [SLP (Cri.)
No.4633/2021], in support of his submission. He submitted that
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even otherwise the prosecution has failed to prove the offence
under Section 302 of the Indian Penal Code (IPC), in as much as,
the prime eye witness i.e. the child of the Applicant has not been
examined by the prosecution. He submits that the trial Court
while convicting the Applicant has taken into consideration the
disclosure made by the Applicant's son to his grandfather i.e.
deceased's father, which is clearly inadmissible being hearsay
evidence, and, such could not have been relied upon by the
learned Judge. He further submits that the Applicant has been
acquitted of the offence punishable under Section 304-B of the
IPC i.e. dowry death and in these circumstances, the conviction of
the Applicant cannot be sustained under Section 498 A of the
IPC.
5 Learned APP opposes the Application. He, however,
does not dispute the fact that the Applicant is in custody for
about 11 years and 8 months.
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6 Perused the papers. The prosecution case rests
entirely on circumstantial evidence. Admittedly, the Applicant has
been acquitted of the offence punishable under Section 304-B of
the IPC. It is not in dispute that the prosecution has not examined
the Applicant's son an alleged witness to the incident i.e. pushing
of his mother by the Applicant. It appears that the learned Judge
has whilst convicting the Applicant, has taken into consideration
the disclosure made by Applicant's son to the grandfather i.e. the
complainant and convicted him on the basis of the said
information received. Prima facie, the disclosure being hearsay
could not have been relied upon by the learned Judge being
hearsay. Be that as it may, the Applicant is in custody for about
more than 11 and ½ year.
6 Considering the aforesaid, 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.
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:: O R D E R :
:
(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;
(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.
25 ia 494 of 2023.doc
8 All concerned to act on the authenticated copy of
this order.
MANJUSHA DESHPANDE, J. REVATI MOHITE DERE, J.
