Shankar Madan Zare v. State Of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION INTERIM APPLICATION NO. 3952 OF 2023 IN CRIMINAL APPEAL NO. 135 OF 2020 Shankar Madan Zare ...Applicant/Appellant

Versus

The State of Maharashtra

...Respondent

....

Mr. Aniket Nikam i/by Mr. Vivek N. Arote, Advocate for the Applicant/Appellant.

Mrs. M. M. Deshmukh, Addl. P.P. for the Respondent - State. ....

CORAM

:

PRAKASH D. NAIK, & N. R. BORKAR, JJ.

DATE :

22nd DECEMBER, 2023.

P.C.

:

1.

This is an application for suspension of sentence and grant of bail during the pendency of Appeal preferred by the applicant challenging the judgment of conviction dated 6th December 2019. 2.

The applicant has been convicted for offence punishable under Sections 302 of Indian Penal Code (for short "IPC") and sentenced to suffer imprisonment of life. He is also convicted for offence under Section 5(g) & 5(i) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act' ) by SAJAKALI LIYAKAT JAMADAR Date:

2023.12.22 17:55:13 +0530 SAJAKALI LIYAKAT JAMADAR

and sentenced to suffer imprisonment for 10 years. 3.

The prosecution case is that the deceased was minor boy aged around 15 years. He was found dead. He has sustained several injuries. He was sexually assaulted. During the course of investigation, the applicant and the co-accused were arrested. They were charge-sheeted.

4.

The previous application for suspension of sentence and grant of bail preferred by the applicant was withdrawn vide order dated 7th July 2021. The said order indicate that after arguing the application for some time, the application was not pressed. It was disposed of as not pressed. Liberty was granted to mention the matter for final hearing.

5.

Learned Advocate for the applicant submitted that the applicant is in custody for more than 8 years. The co-accused has been granted bail by suspending sentence. There is no eye witness to the incident. The case is based on circumstantial evidence. The prosecution is primarily lying upon two circumstances. The first circumstance is that there is recovery of iron rod. However, evidence of PW-6 would indicate that there is discrepancy in respect of the said statement. PW-6 does not seem that there was any mark/number on the iron road which was allegedly used in

commission of crime. PW-7 has stated that there were no blood stains on the iron rod. There is no panchanama with regards to the reopening of the seal. The clothes were recovered from the relatives of the accused. The relatives are not examined. This recovery cannot be termed under Section 27 of the Evidence Act. The applicant is in custody for substantial period of time. The Appeal is not heard. Considering the nature of evidence against the applicant, sentence may be suspended.

6.

Learned A.P.P. submitted that the previous application for suspension of sentence was rejected by this Court. Although there is eye witness to the incident the case is based on strong circumstantial evidence. The victim was the boy aged around 15 years. He was brutally assaulted. He was also sexually assaulted. The previous application was rejected before one an half years. There is no change in circumstance, hence the application may be rejected.

7.

The previous application was disposed of on 7th July 2021 as the Court after arguing the matter for some time would indicate that the Court was not inclined to suspend the sentence. The offence is of serious nature. It is the prosecution case that minor boy was murdered after he was sexually assaulted. The

post-mortem report indicate that he has suffered several injuries which indicate that the assault was brutal. It is true that the case is based in circumstantial evidence. There is recovery of weapon purportedly used in commission of crime. The clothes of the accused were having human blood. The discrepancies as urged by the applicant will have to be appreciated while final hearing of the Appeal. Considering these circumstances, we are not inclined to allow this application.

ORDER

Interim Application No.3952 of 2023 is rejected and stands disposed of.

(N. R. BORKAR, J.) (PRAKASH D. NAIK, J.)