Bombay High Court
Ashish @ Dhiraj @ Mombatti S/O Umeshrao ... vs State Of Maharashtra Thr Pso Sakkardara ... on 3 September, 2025
Author: Anil Laxman Pansare
Bench: Anil Laxman Pansare
2025:BHC-NAG:8704-DB
932-APPA-677-2025 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO. 677 OF 2025
IN CRIMINAL APPEAL NO. 393 OF 2025
(Ashish @ Dhiraj @ Mombatti s/o Umeshrao Jodh (Presently incarcerated at Central Prison, Nagpur)
Vs. State of Maharashtra)
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. H.P. Lingayat, Counsel for the applicant/appellant.
Ms R.V. Sharma, A.P.P. for the non-applicant/respondent/State.
.....
CORAM : ANIL L. PANSARE AND
SIDDHESHWAR S. THOMBRE, JJ.
SEPTEMBER 3, 2025
Heard Mr. H.P. Lingayat, learned Counsel for
the applicant/appellant, and Ms R.V. Sharma, learned
A.P.P. for the non-applicant/State.
2] The applicant/appellant has been convicted
for the offence punishable under Section 302 of the
Indian Penal Code, 1860 (for short "I.P.C.") and Section
135 read with Section 37(1) of the Maharashtra Police
Act, 1951 (for short "Act of 1951"). He has been
sentenced to suffer life imprisonment and to pay fine of
Rs.5,000/- for the offence punishable under Section 302
of the I.P.C. For other offences, he has been sentenced to
suffer rigorous imprisonment for one year with fine of
Rs.2,000/-.
3] The First Information Report was lodged on
1/7/2020. The applicant has stabbed one Amol Shillar by
means of knife. The reason/motive of crime is that the
deceased - Amol did not give him alcohol to drink.
4] The argument is that though eye-witnesses
were examined, they have not supported the case of
prosecution. One of the eye-witnesses is PW/4 - Sushil.
He deposed, in chief examination, that he had been to the
house of one Raja Dudhankar, where he drank water.
Thereafter, he, one Prakash (another witness) and Amol
came outside. The applicant came there. Prakash went
away for attending phone. Applicant - Ashish went with
Amol and assaulted him with knife. The witness then
called Prakash. They both approached the deceased to
save him, and thereafter, the witness left the spot.
5] In cross-examination, the evidence on
applicant taking away the deceased and assaulting him by
knife, is proved to be an omission. The witness has not
stated above fact before the police while recording his
statement under Section 161 of the Code of Criminal
Procedure, 1973 (for short "the Code").
6] The learned Counsel for the applicant has,
accordingly, argued that the improvement made by the
witness will have to be understood in the light of what he
has further admitted in cross-examination. The witness
agreed to the suggestion that his statement was recorded
by police after eight days and that he had not given the
statement on the date of offence when police had arrived
and that his statement was recorded by the police on the
say of the informant. Such admission, coupled with the
fact that the evidence on the point of assault is an
omission, is what makes the testimony of this witness to
be worthy of re-assessment.
7] Another witness is PW/5 - Prakashchandra.
He did not support the case of the prosecution and,
therefore, was cross-examined by the prosecution. His
attention was drawn to the statement made by him before
police that he heard sound of Sushil saying that the
applicant is beating the deceased. The said portion is not
mentioned in his statement.
8] The argument is that firstly, this
contradiction has been not proved by the prosecution,
and secondly, even if the statement is accepted, it only
reveals hearsay evidence, wherein the witness has heard
the voice of Sushil saying that the applicant is beating the
deceased.
9] The aforesaid fact, in our view, also requires
re-assessment of the entire evidence.
10] The learned A.P.P. argued that though there
are improvements and contradictions, the fact remains
that there is sufficient evidence against the applicant to
bring home his guilt.
11] In our view, the manner in which the
witnesses have deposed, there appears material omissions
and contradictions in the statements. The first witness has
not stated, before the police, vital fact of he witnessing
the incident. He further admits that his statement was
recorded after eight days and that his statement was
recorded on the say of the informant. Thus, it is suggested
that the witness is acting at the instance of the informant.
12] The learned A.P.P. then submits that apart
from above evidence, the knife has been recovered at the
instance of the applicant, and further, on his clothes,
blood stains of blood group 'O' were found. She submits
that as per the Chemical Analyzer's report, blood group of
the applicant is 'A', whereas blood group of the deceased
was 'O'. The blood stains on the applicant's clothes having
blood group 'O', is an evidence showing the applicant's
role in the crime.
13] On this point, the learned Counsel for the
applicant has invited our attention to the evidence of
panch witness before whom, the clothes were seized. He
has been examined as an eleventh witness. He said that
on 1/7/2020, police called him to police station. They
had seized the clothes of the applicant in his presence. He
identified the shirt, shown to him, to be the same, which
was seized in his presence.
14] In cross-examination, he deposed that he
does not know the accused. He further deposed that one
policeman was holding the clothes of the accused, but he
does not know his name.
15] The applicant's Counsel submits that the
evidence does not inspire confidence, inasmuch as, the
witness has not spoken that the applicant was wearing
clothes and were taken of in his presence and was
provided with another set of clothes. The Counsel submits
that the evidence, if taken in totality, will only indicate
that the police had already seized the clothes, and one
policeman was holding the clothes of the applicant. Thus,
according to him, seizure of clothes is not proved beyond
reasonable doubt. The Counsel further submits that the
prosecution failed to prove that seized articles were
properly sealed and carried to Forensic Science
Laboratory and, thus, it is not known as to what was
seized and what has reached the Forensic Science
Laboratory.
16] On the point of disclosure, the Counsel has
invited our attention to the evidence of PW/9 - Sunil,
who acted as a panch witness. In chief examination, he
deposed that the accused informed that he had kept knife
in his house and that they went to his house. He then
deposed that the accused took out one knife from the lane
adjacent to his house.
17] Thus, the theory of knife hidden in house is
destroyed. It appears that the knife was kept in an open
lane, which cannot be said to be the place known
exclusively to the applicant.
18] Therefore, the discrepancies in the
statement of the witness, about his exclusive knowledge
of where the knife was kept and the place from where the
knife was taken out, is yet another reason that would
justify re-assessment of evidence.
19] Thus, what could be gathered from the
evidence, which otherwise is said to be crucial, is that
there is material omissions and contradictions in the
testimony of the eye-witnesses. The evidence on the point
of seizure of clothes and weapon is also weak. In that
sense, we are of the considered view that the applicant
has made out a case for suspension of sentence.
20] At this stage, learned A.P.P. has invited our
attention to the judgment of the Hon'ble Supreme Court
in the case of Omprakash Sahni Vs. Jai Shankar
Chaudhary And Another [(2023) 6 SCC 123], wherein,
on the point of suspension of sentence, the Court held as
under :
"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
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 few
lacunae or loopholes here or there in the case
of the prosecution. Such would not be a correct
approach."
21] The learned A.P.P., taking aid of the above
finding, argued that the Court should not re-appreciate
the evidence at the stage of Section 389 of the Code and
try to pick a few lacunae or loopholes here or there in the
case of the prosecution.
22] We have referred to the evidence of the
important witnesses to find that there is material
omissions and contradictions on the face of the record
and, therefore, we are of the view that the evidence will
require re-appreciation. We have not re-appreciated the
evidence. What is important is whether the applicant has
made out an arguable case, which we find that he has.
The discrepancies noted in the evidence of the
prosecution witnesses are apparent on the record, which
the trial Court has not taken into account.
23] In the circumstances, we find that the
applicant has fair chances on merit. Further and
considering pendency, it is unlikely that the appeal will be
heard in near future. We were informed that the applicant
is in jail from the year 2020. Thus, he has undergone
imprisonment for about five years.
24] Considering totality of circumstances and
the discrepancies in the evidence, we are of the
considered view that the applicant has made out a case.
25] Accordingly, the application is allowed. The
sentence of conviction passed by the learned Additional
Sessions Judge, Nagpur, in Sessions Case No. 287/2020,
convicting the applicant under Section 302 of the I.P.C.
and Section 135 read with Section 37(1) of the Act of
1951, stands suspended. The applicant - Ashish @ Dhiraj
@ Mombatti s/o Umeshrao Jodh, shall be released on bail
on his furnishing Personal Recognizance bond in the sum
of Rs.50,000/- with one or two sureties in the like
amount.
26] The applicant shall not indulge into any
illegal activities. The applicant shall attend the
jurisdictional police station, viz., police station -
Sakkardara, District - Nagpur, on first Monday of every
month between 11:00 am to 1:00 pm. The applicant shall
appear before the Court as and when directed. The
applicant shall monitor progress of appeal and shall
appear before the Court on the date of final hearing of
appeal.
27] The learned A.P.P. or the Investigating
Officer is at liberty to seek cancellation of bail, if any of
the conditions is breached or for any other sufficient
reason.
28] The application is disposed of in terms of
above.
(JUDGE) (JUDGE)
Sumit
Signed by: Mr. Sumit Agrawal
Designation: PS To Honourable Judge
Date: 04/09/2025 14:17:41
