Bombay High Court
Sunil S/O Gopal Yadav And 3 Others vs The State Of Mah. Thr. Pso Deolapar Ps ... on 6 December, 2023
Bench: Vinay Joshi, M. W. Chandwani
2023:BHC-NAG:16884-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APPA) NO.243 OF 2023 IN
CRIMINAL APPEAL NO.355 OF 2022
Sunil S/o Gopal Yadav and others 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.
Shri S.P. Bhandarkar, Advocate for applicants.
Shri M.J. Khan, APP for respondent no.1/State.
Shri A.K. Bhangde, Advocate Assist to prosecution.
CORAM : VINAY JOSHI &M.W. CHANDWANI JJ.
DATE : DECEMBER 06, 2023.
Initially, this application seeking suspension of
execution of sentence has been filed by three accused,
however, learned counsel for the applicants has withdrawn
the application to the extent of applicant no.1- Sunil Yadav
(accused no.3) and applicant no.2 - Premlal Yadav (accused
no.8) and thus application remains to the extend applicant
no.3 - Malkhan Yadav (accused no.12). In all 12 persons
were put on trial for committing murder of one Dhanesh on
16.07.2014 around 5 pm. The trial Court has convicted four
persons whilest acquitted rest.
2. The learned counsel for applicant-Malkhan
(hereinafter term 'applicant' is referred for Malkhan only)
would submit that the trial Court seriously erred in
convicting Malkhan despite cogent and reliable evidence.
The trial Court has not considered the evidence of eye
witnesses in proper perspective. There is no disclosure and
consequential recovery at the instance of the applicant. The
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trial Court failed to appreciate the evidence adduced by the
applicant in support of plea of alibi. Moreover, it is
submitted that the applicant is in jail from 12.08.2014
meaning thereby near about one decade.
3. At the instance of report lodged by the informant
Smith (PW9), the crime has been registered. It is the
prosecution case that on 15.07.2014 there was oral
altercation between deceased Dhanesh and two persons
namely Sunil Yadav and Nilu Yadav. On account of said
quarrel, on 16.07.2014 around 5 pm, co-accused - Tufan
came with some of the assailants including applicant to the
office. At the relevant time, co-accused - Sunil initiated the
quarrel by threatening the deceased. The applicant was
asking co-accused - Tufan to shoot at the deceased. Co-
accused Indalsing also instigated Tufan for shooting the
deceased. Immediately, co-accused -Tufan fired at Dhanesh,
which resulted in causing his instant death. On the basis of
said report, the police have registered the crime and carried
investigation.
4. Several witnesses have been examined by the
prosecution. Admittedly, PW1 - Dhiraj and PW3- Ahkil
though present on the spot have not supported the
prosecution case on the point of presence of the applicant.
The prosecution has relied on the evidence of PW8-Samir,
and PW9-Smith (informant) to base the conviction of the
applicant.
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5. Learned counsel appearing for the applicant took us
to the evidence of PW8-Samir, who has stated that the
applicant-Malkhan and co-accused-Indulsing have exhorted
co-accused Tufan to fire gunshot. It is submitted that though
PW8-Samir stated about the applicant's role of exhortation
however it was a pure improvement. For this purpose, we
have been taken through the evidence of the investigating
officer to prove this omission. The evidence of PW8- Samir
has also been criticized on the point of test identification
parade. It is pointed out that Malkhan was knowing to the
witness and thus the test identification parade conducted
after six months is of no significance.
6. Then we have been taken through the evidence of
PW9-Smith (informant), who is an injured eye witness. He
deposed that Tufan, applicant-Malkhan, Indalsing and some
others had participated in the incident. He has stated that
Malkhan and co-accused Indalsing have exhorted Tufan to
fire at the deceased. It is submitted that out of rivalry, the
applicant though not present on the spot has been falsely
implicated. Rather the applicant is coming with a specific
plea of alibi. Three defence witnesses have been examined
to establish the presence of Malkhan elsewhere. The
evidence of tower location and record from the toll check
booth has been produced on record. We have been taken
through their evidence alongwith the documents produced
on record.
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7. We have perused the observations of the trial Court
on the point of evidence of alibi. Both sides have relied on
some decisions to impress about the standard of proof to
establish the defence of alibi. We are afraid to make an
exhaustive comment on the issue but suffice to say that
prima facie on the factual aspect we have to see whether a
case is made out by defence is convincing and acceptable.
Certainly, the onus on the accused is not high as the general
onus lies on the prosecution to establish the case.
8. It is brought to the notice that the applicant had
earlier applied for suspension of sentence however the said
application was withdrawn as reflected in order dated
07.07.2022. The said order does not indicate that the Court
has expressed its non-inclination to entertain the prayer of
suspension. Moreover, a period of more than 1 ½ years has
passed still there is no progress. Therefore, we think the said
withdrawal that too with liberty to apply afresh would not
come in our way to entertain this application.
9. The unfolded evidence discloses that the applicant
has exhorted the main assailant to fire on the deceased.
Rival submissions are made whether such an act can be
construed as an offence committed in furtherance of
common intention. Obviously, said exercise has to be done
at the time of the final hearing, however, undisputedly the
role of the applicant is about exhortation only whilest co-
accused Tufan has fired on the deceased. We have
considered all the submissions and gone through the
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reasoning assigned by the trial Court. Our attention has been
invited that similar allegations of exhortation have been
leveled against co-accused Indalsing, who has been acquitted
by the trial Court by according benefit of doubt. Certainly, if
the role of both of them is same and the evidence is of also
similar nature then it is a matter of consideration whether
the applicant's conviction is sustainable. Particularly it has
been weighed to us that for near about ten years the
applicant is in jail. The applicant has made out arguable
grounds. If the applicant succeeds in appeal then irreversible
position would occur. The appeal will take its own time for
disposal.
10. Considering all above facts, we are inclined to exercise
our discretion to suspend the execution of sentence. In view
of that, the following order :
ORDER
i. The application is allowed and disposed of.
ii. Execution of substantive sentence passed Sessions Trial No.137/2015 against applicant no.3 - Malkhan stands suspended till disposal of the appeal.
iii. In the meantime, the applicant - Malkhan S/o Asharfilal Yadav shall be released on bail on his furnishing PR bond in the sum of Rs.50,000/- with one solvent surety in the like amount.
(M.W. CHANDWANI, J.) (VINAY JOSHI, J.) Wagh