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Bombay High Court
Amol S/O Pandurang Borkar (In Jail) vs State Of Maha Thr Pso, Ps Lakadganj on 19 December, 2025
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APPA) NO. 991/2025
IN
CRIMINAL APPEAL NO. 611/2024
Amol s/o Pandurang Borkar Vs. State of Maharashtra, Through Police Station
Officer, Police Station Lakadganj, Nagpur
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. Sunil Manohar, Senior Advocate a/b Mr. U.P. Dable, Advocate for
Applicant / Appellant
Mrs. H.N. Prabhu, APP for Respondent
CORAM: NIVEDITA P. MEHTA, J.
DATED : 24th DECEMEBER 2025
1. The present application is filed under Section
430 of the Bharatiya Nagarik Suraksha Sanhita, 2023,
by the applicant seeking suspension of the substantive
sentence imposed upon him pending disposal of the
appeal. The applicant was convicted by the learned
Adhoc District Judge-6 and Additional Sessions Judge,
Nagpur, in Sessions Case No. 49/2015, vide judgment
and order dated 18.10.2024.
2. The applicant stands convicted and sentenced
as under:
(i) Section 304-B of the Indian Penal Code -
sentenced to suffer rigorous imprisonment for 10
years and to pay a fine of Rs.5,000/-, in default to
suffer rigorous imprisonment for six months;
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(ii) Section 498-A read with Section 34 of the Indian
Penal Code - sentenced to suffer rigorous
imprisonment for two years and to pay a fine of
Rs.3,000/-, in default to suffer rigorous imprisonment
for one month.
3. This is the second application for suspension of
sentence. The earlier application, being Criminal
Application (APPA) No. 1057/2024, came to be
rejected by this Court by order dated 10.01.2025. The
said order was carried to the Hon'ble Supreme Court,
which by order dated 28.02.2025, passed in the
Special Leave Petition, observed as under:
"At this stage, learned counsel for the petitioner does
not wish to press this Special Leave Petition seeking
liberty to renew the prayer before the High Court
after nine months.
Accordingly, the Special Leave Petition is dismissed as
not pressed with liberty as prayed for."
4. Learned Senior Counsel appearing for the
applicant submits that the applicant was on bail
throughout the course of the trial and has not misused
the liberty so granted at any point of time. It is
contended that the applicant has scrupulously
complied with all the conditions imposed by the trial
Court, which itself demonstrates that he is not likely
to abscond or misuse liberty if the sentence is
suspended.
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5. Learned Senior Counsel further submits that
while rejecting the earlier application for suspension
of sentence, this Court has, in paragraph 9 of the said
order, itself recorded certain material aspects of the
prosecution case. It is pointed out that the marriage
between the applicant and the deceased was
solemnized on 07.06.2014, whereas the death
occurred on 09.09.2014. Though the parents of the
deceased have alleged that she was subjected to ill-
treatment on account of demand of Rs.2,00,000/- for
purchase of a vehicle, no specific instances, dates, or
particulars of such alleged cruelty have been brought
on record. According to the learned Senior Counsel,
the evidence led by the prosecution remains vague
and general in nature and lacks the specificity
required to attract the provisions of Section 304-B of
the Indian Penal Code.
6. With regard to the medical evidence, learned
Senior Counsel has drawn attention to the testimony
of PW-11, the Medical Officer, who has categorically
stated that no external injuries were found on the
person of the deceased when she was brought to the
hospital. He further invited the attention of this Court
to the evidence of PW-12, Assistant Professor in the
Department of Forensic Medicine and Toxicology, who
conducted the post-mortem examination. During
cross-examination, PW-12 admitted that the age of the
injuries mentioned in the post-mortem report was not
specified, though it could have been mentioned. He
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further stated that the colour of injuries depends upon
the skin colour of the injured person and candidly
admitted that he could not state the skin colour of the
deceased Sonali prior to her death. According to the
learned Senior Counsel, these admissions create
serious doubt regarding the medical opinion relied
upon by the prosecution.
7. Learned Senior Counsel further submits that
there is no cogent evidence on record detailing the
alleged demand of dowry. The prosecution witnesses
have made only general and omnibus allegations
regarding demand, without establishing that the
deceased was subjected to cruelty or harassment soon
before her death, which is a sine qua non for invoking
Section 304-B of the IPC.
8. It is also pointed out that the Chemical
Analyzer's report categorically reveals that no poison
was detected in the viscera collected during the course
of investigation, thereby ruling out poisoning and
further weakening the prosecution case.
9. On the aforesaid grounds, learned Senior
Counsel submits that the essential ingredients of
Section 304-B of the IPC are not prima facie attracted.
In the absence of proof of specific acts of cruelty or
harassment soon before death, the presumption under
Section 113-B of the Indian Evidence Act cannot be
mechanically invoked, and consequently, Section 106
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of the Indian Evidence Act would also not come into
play.
10. In support of his submissions, learned Senior
Counsel has placed reliance on the judgment of the
Hon'ble Supreme Court in Karan Singh v. State of
Haryana, reported in 2025 SCC OnLine SC 214, to
contend that vague and general allegations,
uncorroborated by independent or medical evidence,
are insufficient to sustain a conviction under Section
304-B of the IPC.
11. It is lastly submitted that the applicant has an
arguable case on merits, and has already undergone
incarceration for about one year and ten months. In
these circumstances, learned Senior Counsel submits
that continued detention of the applicant during
pendency of the appeal would cause serious prejudice,
and therefore prays that the substantive sentence be
suspended pending final disposal of the appeal.
12. Per contra, learned Additional Public Prosecutor
submits that the earlier application for suspension of
sentence was rejected and, in the absence of any
substantial change in circumstances, the present
application is not maintainable. It is contended that at
this stage the Court cannot reassess the evidence, as
that would amount to reviewing the earlier order. She
further submits that the death has occurred within a
short period of marriage and, therefore, the
presumption under Section 113-B of the Indian
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Evidence Act squarely applies. It is also contended
that the applicant being a legal professional, the
possibility of misuse of liberty cannot be ruled out.
Reliance is placed on the judgment in Ashok Punalik
Gavade v. State of Maharashtra, reported in 2019 SCC
OnLine Bom 155 to contend that the second
application for suspension of sentence is not
maintainable.
13. I have carefully considered the rival
submissions, perused the record, and examined the
legal position governing suspension of sentence
pending appeal. It is settled law that while
considering an application for suspension of sentence,
the appellate court is not expected to undertake a
detailed re-appreciation of evidence, but is required to
assess whether the appeal raises debatable and
arguable issues, and whether continued incarceration
of the convict during pendency of the appeal would
cause undue prejudice.
14. The applicant was on bail throughout the trial
and there is no material on record to indicate that he
misused the liberty so granted. The Hon'ble Supreme
Court, while dismissing the earlier Special Leave
Petition, expressly granted liberty to renew the prayer
after nine months. Thus, the present application
cannot be said to be barred or not maintainable.
15. The submissions advanced by the learned
Senior Counsel bring forth palpable and arguable
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issues, particularly with regard to the nature of
evidence relating to cruelty and harassment, the
medical and forensic evidence, and the applicability of
the statutory presumption under Section 113-B of the
Evidence Act. These aspects cannot be conclusively
determined at this stage and would require detailed
examination at the time of final hearing of the appeal.
16. However, the reliance placed by the learned
Additional Public Prosecutor on the decision in Ashok
Punalik Gavade v. State of Maharashtra (Supra) does
not advance the case of the prosecution in the facts of
the present matter. In the said decision, the
subsequent application for suspension of sentence was
found to be impermissible in the absence of any
liberty or change in circumstances, and where the
second application was founded on the very same
grounds which had been earlier considered and
rejected. In the present case, the earlier order of
rejection was carried to the Hon'ble Supreme Court,
and the Special Leave Petition came to be dismissed as
not pressed with express liberty to the applicant to
renew the prayer after a stipulated period. The grant
of such liberty constitutes a material and significant
change in circumstance, entitling the applicant to seek
reconsideration of the prayer for suspension of
sentence.
17. Further, the present application is not a mere
repetition of the earlier one, but is required to be
examined in the light of the period of incarceration
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already undergone by the applicant, coupled with the
time likely to be taken for disposal of the appeal. The
consideration of these factors does not amount to re-
appreciation of evidence or review of the earlier order,
but falls within the permissible scope of scrutiny
under Section 430 of the Bharatiya Nagarik Suraksha
Sanhita, 2023. Therefore, the ratio laid down in
Ashok Punalik Gavade (supra) is clearly
distinguishable on facts and does not operate as a bar
to the maintainability or consideration of the present
application.
18. The applicant has already undergone a
substantial period of incarceration. Considering the
pendency of criminal appeals and the time likely to be
taken for final disposal, continued incarceration at
this stage would result in irreversible prejudice, if
ultimately the appeal succeeds.
19. The Hon'ble Supreme Court, in Jamnalal v.
State of Rajasthan & Anr., SLP (Crl.) No. 69/2025,
held thus:
"10. One would expected the High Court
hearing an application under Section 389 of
Cr.P.C. for suspension of sentence to examine
prima facie there was anything palpable on
the record to indicate if the accused had a
fair chance of overturning the conviction in
Omprakash Sahni v. Jai Shankar Chaudhary
and Another, this Court had the following to
say on the scope of Section 389 of the Cr.P.C.
"23. The principle underlying the
theory of criminal jurisprudence in our
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country is that an accused is presumed to
be innocent till he is held guilty by a
Court of competent jurisdiction. Once
the accused is held guilty, the
presumption of innocence gets erased.
In the same manner, if the accused is
acquitted, then the presumption of
innocence gets further fortified.
24. From perusal of Section 389 CrPC,
it is evident that save and except the
mater falling under the category of sub-
section (3) neither any specific principle
of law is laid down nor any criteria has
been fixed for consideration of the
prayer of the convict and further, having
a judgment of conviction erasing the
presumption leaning in favour of the
accused regarding innocence till contrary
recorded by the Court of competent
jurisdiction, and in the aforesaid
background, there happens to be a fine
distinction between the prayer for bail
at the pre-conviction as well as the post-
conviction stage viz. Sections 437, 438,
439 and 389(1) CrPC.
33. Bearing in mind the aforesaid
principles of law, the endeavour on the
part of the Court, therefore, should be to
see as to whether the case presented by
the prosecution and accepted by the trial
Court can be said to be a case in which,
ultimately the convict stands for fair
chances of acquittal. If the answer to the
abovesaid question is to be in the
affirmative, as a necessary corollary, we
shall have to say that, if ultimately the
convict appears to be entitled to have an
acquittal at the hands of this Court, he
should not be kept behind the bars for a
pretty long time till the conclusion of the
appeal, which usually takes very long for
decision and disposal. However while
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undertaking the exercise to ascertain
whether the convict has fair chances of
acquittal, what is to be looked into is
something palpable. To put it in other
words, something which is very apparent
or gross on the face of the record, on the
basis of which, the court can arrive at a
prima facie satisfaction that the
conviction may not be sustainable. The
appellate court should not reappreciate
the evidence at the stage of Section 389
CrPC and try to pick up a few lacunae or
loopholes here or there in the case of the
prosecution. Such would not be a
correct approach."
20. The principles laid down by the Hon'ble Supreme Court in
Jamnalal v. State of Rajasthan & Anr., (supra) clearly indicate that
where the appellate court finds something palpable on record
suggesting fair chances of success, suspension of sentence may be
granted, subject to appropriate safeguards.
21. Without expressing any opinion on the merits of the appeal,
and bearing in mind the seriousness of the offence, this Court is of
the considered view that the balance tilts in favour of granting
suspension of sentence, subject to stringent conditions to secure
the presence of the applicant and to prevent misuse of liberty.
22. Accordingly, the application is allowed. The substantive
sentence imposed upon the applicant by the learned Adhoc District
Judge-6 and Additional Sessions Judge, Nagpur, in Sessions Case
No. 49/2015, vide judgment and order dated 18.10.2024, is
hereby suspended, subject to the following terms and conditions:
I. The applicant / appellant shall be released on
bail on furnishing PR bond of Rs.25,000/- with
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solvent surety in the like amount before the trial
Court.
II. The applicant shall report before the concerned
trial Court on the first day of every calender month
until further orders.
III. The applicant shall furnish his current
residential address and mobile number to the
concerned Sessions Court and shall inform the Court
about change of address or contact number forthwith.
IV. The applicant shall appear before this Court at
the time of final hearing of this Appeal.
The application shall stand disposed off.
Heard.
ADMIT.
Issue notice to the respondent, returnable on
13.01.2026.
The learned APP waives service of notice.
Call for R & P.
(NIVEDITA P. MEHTA, J.)
MP Deshpande
Signed by: Mr. M.P. Deshpande
Designation: PA To Honourable Judge
Date: 24/12/2025 19:20:01
