Mangesh S/O Diwakar Magare v. State Of Maharashtra Thr Pso. Ps Nagbhid, Chandrapur

2025:BHC-NAG:3647

(1) 61.appa.260.2025

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (APPA) NO.260 OF 2025 IN CRIMINAL APPEAL NO.140 OF 2025 Mangesh s/o Diwakar Magare Vs.

State of Maharashtra, through Police Station Officer, Police Station Nagbhid, Chandrapur -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Mr. S. D. Umredkar, Counsel for the applicant. Mr. C. A. Lokhande, APP for non-applicant/State. CORAM : URMILA JOSHI-PHALKE, J.

DATED : 01/04/2025 1.

By this application, the applicant is seeking suspension of sentence and releasing him on bail. 2.

The applicant is prosecuted for the offences punishable under Sections 376(1), 376(D), 305 of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act. As per the allegations, on 07.08.2020 the daughter of the informant got missing and during the search, her dead body was found. In one polythene bag a suicide note was also found wherein it was mentioned that the present applicant and another accused subjected her for sexual assault, and therefore, she is committing suicide. After completing of the investigation, the charge-sheet was submitted.

(2) 61.appa.260.2025 3.

On appreciation of the evidence, the learned trial Court held the present applicant as well as the other co-accused guilty and sentenced them to suffer rigorous imprisonment for 20 years for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act and fine of Rs.25,000/-, in default of payment of fine, simple imprisonment for six months. The applicant and other co-accused further convicted for the offence punishable under Section 305 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years and also liable to pay fine of Rs.25,000/-.

4.

Being aggrieved and dissatisfied with the same, the present appeal is preferred along with the application for suspension of sentence.

5.

Heard learned Counsel for the applicant, who submitted that except the suicide note, there is no other material collected by the prosecution and no evidence is adduced by the prosecution to show the involvement of the present applicant. The applicant was neither seen at the spot of incident nor in the company of the victim by any of the witnesses. As far as the findings of the trial Court is concerned, it is only on the assumption and on the basis of the suicide note and the opinion of the handwriting expert. He submitted that the opinion of the handwriting expert is not a substantial evidence. The

(3) 61.appa.260.2025 applicant has many chances of success in the present appeal as there are many arguable points in the present appeal. However, the appeal would take its own time for its final disposal and in the meantime, if the sentence is executed, then the appeal would become infructuous.

6.

Learned APP strongly opposed the said application on the ground that the statement of the witness discloses the involvement of the present applicant. After appreciation of the evidence, the trial Court has held them guilty, in view of that the application deserves to be rejected.

7.

On hearing both the sides and on perusal of the entire evidence on record admittedly, the case is rested on the circumstantial evidence. The entire case is revolves around the suicide note. The neighbour of the informant has stated that the victim had been to the agriculture field. The suicide note was also found on the boundary of the agriculture field wrapped in the polythene bag. PW-5 and PW-9 have witnessed the victim and she was weeping. Though they have inquired with her, but she has not disclosed any incident to them. The suicide note is written in four lines stating the names of the present applicant and the other co-accused. During the cross-examination, nothing is brought on record to show that there is any other reason to implicate the present applicant in the alleged incident. The

(4) 61.appa.260.2025 handwriting in the suicide note and the specimen handwriting shows the similarity. The spot of incident is also revealed on the basis of the statement of the co-accused. The learned Special Court has appreciated the evidence and thereafter, come to the conclusion that the evidence which is adduced by the prosecution is sufficient to warrant the conviction and accordingly, the applicant is convicted.

8.

As far as the law regarding the suspension of sentence is concerned by referring the catena of decisions in the case of Omprakash Sahni vs. Jai Shankar Chaudhary and another Etc. in Criminal Appeal Nos.1331-1332 of 2023 decided on 2nd May of 2023 the Hon'ble Apex Court in para No.33 observers as under:

"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 above said 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 take 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

(5) 61.appa.260.2025 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 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach."

9.

In the case in hand, the trial Court has come to the conclusion on the basis of the circumstantial evidence and convicted the present applicant. At this stage, there is no ground made out by the present applicant to show that he has every chance of success in the present appeal. In view of that, the application deserves to be rejected. Accordingly, I proceed to pass following order.

ORDER

The application is rejected.

CRIMINAL APPEAL NO.140 OF 2025 Appeal be listed for final disposal after preparation of the paper book.

(URMILA JOSHI-PHALKE, J.) Sarkate