Criminal Application No. 199 of 2025 · The High Court · 2025
Case Details
(1) criappln-199.2025.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD CRIMINAL APPLICATION NO.199 OF 2025IN CRIMINAL APPEAL NO. 62 OF 2025Rahul Bhikulal KasatApplicantVersusThe State of Maharashtra Respondent...Mr. Rajendraa Deshmukh, senior advocate i/b Mr. Devang Deshmukh, Advocate for the applicant.Mr. S.R. Wakale, A.P.P. for the respondent-State.Mr. Sanjeev Deshpande, senior advocate i/b Mr. R.A. Karwa, Advocate assisting the Public Prosecutor. ...CORAM :NITIN B. SURYAWANSHI ANDSANDIPKUMAR C. MORE, JJ.Closed for order on:17 July 2025Order pronounced on:25 July 2025ORDER (Per Sandipkumar C. More, J.) :1.By this application, the applicant Rahul BhikulalKasat i.e. the appellant/original accused No.5 in SessionsCase No. 218 of 2021, is seeking suspension of substantivesentence imposed upon him under judgment and order dated18.10.2024 in the aforesaid sessions case, passed byAdditional Sessions Judge, Parbhani i.e. the learned trialCourt and releasing him on bail during the pendency ofappeal. (2) criappln-199.2025.odt2.As per the prosecution case, deceased SureshKarwa was living with his wife Seema i.e. PW-50 and sonYash. Present applicant/accused being a wealthy business-man from Selu, established cordial family relations withKarwa family. Thereafter he developed illicit relations withwife of the deceased. After some time wife of the deceasedwanted to end the said relationship, but theapplicant/accused threatened her for not to do so. He alsothreatened her that he would kill her family member. Whenthe said fact was brought to the notice of the deceased by hiswife, the deceased told her to keep calm. The applicant/accused then hatched conspiracy alongwith other accused forcommitting murder of Suresh Karwa. On 02.05.2021 whenSuresh Karwa was returning from his agricultural fieldtowards Selu, a scene was created near Khari bridge as if hewas given dash by trax jeep driven by accused No.4 andthereafter accused No.2 Vinod hit Suresh with iron rod onhead resulting into his death. Thereafter when the body ofdeceased Suresh Karwa was recovered, an offence ofaccidental death was registered by his brother Satish Karwaunder Sections 304-A, 279 and 427 of I.P.C. initially.However, when the audio clip of conversation betweenapplicant/accused and wife of deceased became viral, offence
Facts
(3) criappln-199.2025.odtunder Section 302 and120-B of I.P.C. was added to the earlierregistered crime. Thereafter on completion of investigation,trial was conducted by the learned trial Court resulting intoconviction of present applicant for the offence punishableunder Sections 302 read with Section 34 and 120-B of I.P.C.Out of other accused, accused Nos.2 to 4 were also convicted.3.Learned senior counsel Mr. Deshmukh for theapplicant/accused submitted that the present applicant isnot at all involved in the alleged crime and Suresh i.e.deceased in the instant case, had in fact died due to accidentcaused by one truck bearing registration No. MH-22-AN-8085as per initial report. He pointed out that PW1-Satish, whohad lodged report of accident, has admitted that there are infact two eye witnesses namely Khandu Banduke andDadasaheb Lipane to the accident and their statements werealso recorded by earlier Investigating Officer, but theprosecution, for false implication of the present applicant,suppressed those statements. According to him, present caseis based on circumstantial evidence in form of electronicevidence which is not at all admissible since recovery of thoseinstruments is highly doubtful and the panch witness to thatdiscovery/recovery has not supported the same. (4) criappln-199.2025.odt4.Learned senior counsel further pointed out thateven the Medical Officer Sanjay Loya (PW-34) had initiallyrecorded his opinion in respect of death of Suresh that thesame was caused due to cerebral vascular damage to thebrain due to severe head injury, secondary to road trafficaccident, but the second Investigating Officer pressurized thismedical officer to change the cause of death by showing himmurder weapon i.e. crowbar and compelled him to change theopinion. Learned senior counsel also pointed out that onlyafter this attempt on the part of second Investigating Officer,PW-34 Dr. Loya, at the instance of Civil Surgeon, Parbhani i.e.PW-43 Nagargoje, changed cause of death by deleting thewords “secondary to road traffic accident”. He pointed outvarious admissions given by the Investigating Officer ShrawanDatta (PW-51) which, according to him, created suspicion overthe prosecution story. Likewise, he also pointed out variousadmissions from the wife of deceased which revealed that thedeceased was not having any objection in respect of her illicitrelations with applicant/accused. Thus, he submitted thatthere are various shortcomings in the evidence ofprosecution. According to him, the accused were not shown tothe alleged eye witnesses for identification and the recoveredweapon i.e. iron bar was also not sent for forensic opinion to (5) criappln-199.2025.odtestablish the fact that the same was used for giving blow onthe head of deceased by the co-accused. According to him,applicant has been falsely implicated in the present crime onthe basis of fabricated motive and tainted electronic evidenceand with vengeance as he had exposed corruption in thepolice department. In support of his submissions, he placedreliance on the following judgments.(i)Chandrabhan Sanap vs State of Maharashtra, AIR 2025SC 1103(ii)Arjun Khotkar vs Kailas Kushanrao Gorantyal & others2020 DGLS (SC) 508(iii)Padman Bibhar vs State of Odisha, 2025 SCC OnLine SC 1190(iv)Goverdhan and another vs State of Chattisgarh2025 (3) SCC 378(v)Jan Mohammad and another vs State of Bihar1953 (1) SCC 5(vi)Judgment of Apex Court in the case of Shivaji KisanNarawane vs State of Maharashtra in Criminal AppealNo. 332 of 2025 arising out of SLP (Cri) No.17258 of 2024(vii)Sujit Biswas vs State of Assam, AIR 2013 SC 3817(viii)Rajesh & another vs State of Madhya Pradesh2023 DGLS (SC) 11275.On the contrary, learned A.P.P. Mr. S.R. Wakalestrongly opposed the submissions made on behalf of theapplicant/accused. According to him, the first F.I.R. inrespect of accidental death of deceased was in fact hurriedlylodged when the conspiracy of killing the deceased was not (6) criappln-199.2025.odtrevealed. According to him, ample electronic evidence isavailable on record in the form of conversation of presentapplicant and other accused in respect of conspiracy. Hepointed out that the present applicant/accused wascontinuously in touch with other accused through mobilephones and transcript of their conversation clearly indicatedthat the applicant and convicted co-accused hatchedconspiracy for committing murder of deceased Suresh. Hepointed out relevant portions of the judgment as to how thelearned trial Court on the basis of such transcriptions heldthe applicant and other co-accused guilty. Learned A.P.P.thus justified the reasoning of learned trial Court in respectof conviction of applicant/accused. According to him, thepresent applicant/accused was an under trial prisoner sincebeginning, and therefore, he need not be released on bailduring pendency of this appeal.6.On the other hand, learned senior counsel Mr.S.B. Deshpande on behalf of the informant also opposed theapplication on the ground that as per testimony of PW-50 i.e.the wife of deceased Suresh, the applicant/accused washaving strong motive to eliminate the deceased. He pointedout the evidence of bullock cart rider who had seen the co-
Legal Reasoning
(10) criappln-199.2025.odtWhat is under consideration at this juncture, is, whether thesubstantive sentence of the applicant can be suspended byreleasing him on bail. The parameters for considering thebail application under Section 389 of the Code of CriminalProcedure are different than the consideration of entirematter in appeal to ascertain whether the accused is guilty.11.Admittedly, there are certain admissions given byprosecution witnesses which may create doubt in respect ofthe manner in which investigation has been carried out.However, at the same time there is also important material onrecord in respect of conspiracy among applicant and otherconvicted co-accused, specially in the form of theirconversation in respect of crime. The conversation broughton record by the prosecution indicates prima facieinvolvement of the present applicant in the crime. It is nowsettled that when the case is based on circumstantialevidence against the accused, then prosecution has toestablish each and every link or circumstance leading to theguilt of accused. In the instant case, though certainadmissions and contradictions are brought on record in theevidence of prosecution witnesses, but there is also primafacie material on record against the applicant and other (11) criappln-199.2025.odtconvicted co-accused. Therefore, though the contradictionsand admissions are there on record, but the same cannot beconsidered in isolation. Moreover, from the evidence of PW-50i.e. wife of the deceased, it can safely be inferred that theapplicant was having motive to commit this crime. The entireevidence of prosecution has to be considered to ascertainwhether the applicant is involved in the present crime. Thiscan be possible only at the time of final hearing of appealpreferred by this applicant and appeal by other convicted co-accused. Under such circumstances and speciallyconsidering the material against the applicant in form of hisconversation with other co-accused indicating the conspiracyhatched among them relating to charge against them, we donot consider that it is a fit case for grant of bail to theapplicant/accused by suspending his substantive sentence.Resultantly, the application stands dismissed.(SANDIPKUMAR C. MORE) (NITIN B. SURYAWANSHI) JUDGEJUDGEVD_Dhirde
Arguments
(7) criappln-199.2025.odtaccused giving blow to the deceased. He also reiterated thatas per the transcription of conversation among applicant andother convicted accused namely Vinod Ambhure, Vishal Patiland Rajubhau Khandagale, it has come on record as to howthey hatched conspiracy for killing the deceased. Accordingto him, all the submissions made by learned senior counselMr. Deshmukh for the applicant in respect of admissionsgiven by prosecution witnesses, need to be considered at thetime of final argument of the appeal. Accordingly, he prayedfor dismissal of the application. In support of thesubmissions made at bar, learned senior counsel Mr.Deshpande also placed on record written notes of argumentmentioning as to how the conspiracy as well as chain ofcircumstances is established by the prosecution against theapplicant and co-accused.7.Heard rival submissions. Also perused the entirerecord and proceeding of the original sessions case.8.Admittedly, in respect of death of Suresh Karwa,initially prosecution had registered crime for the offenceunder Sections 304-A, 279 and 427 of I.P.C. considering it asan accidental death. However, due to conversation between (8) criappln-199.2025.odtwife of deceased and applicant/accused, conspiracy amongthe accused revealed and thereafter on the basis of evidencecollected by the prosecution, offence under Sections 302 and120-B of I.P.C. was added in the initial crime, and onconsidering the evidence on record, learned trial Court hasconvicted this applicant for hatching conspiracy with accusedNos.2 to 4 for committing murder of Suresh Karwa. It issignificant to note that the present applicant/accused was incustody throughout the trial after his arrest.9.Learned senior counsel Mr. Deshmukh for theapplicant is seeking release of applicant on bail andsuspension of his substantive sentence during the pendencyof this trial mainly on the ground that there are so manycontradictions in the evidence of prosecution witnesses andsome of the prosecution witnesses have given vital admissionscreating doubt about the entire prosecution story. He pointedout that the conversation among the applicant and otherconvicted accused, which was considered by the learned trialCourt for convicting them, was not at all trustworthy, sinceit’s extraction and seizure of concerned electronic device washighly doubtful and not supported by any independentwitness. Learned senior counsel Mr. Deshmukh has also (9) criappln-199.2025.odtrelied on various judgments as mentioned above.10.The observation in the case of Chandrabhan vsState of Maharashtra (supra) is in respect of circumstantialevidence and extra-judicial confession. Further, judgment inthe case of Arjun Khotkar vs Kailas Gorantyal (supra) is inrespect of necessity of certificate under Section 65-B of theIndian Evidence Act without which electronic evidence is of nouse. Judgment in the case of Padman Bibhar vs State (supra)lays down the principal that suspicion however strong, cannotsubstitute proof. Further, the judgment in the case ofGovardhan vs State (supra) speaks about liability ofprosecution to adduce proof beyond all reasonable doubts toestablish guilt of the accused. Judgment in the case of JanMohammad (supra) speaks about motive, whereas judgmentsin the cases of Shivaji Kisan Narwane and Sujit Biswas(supra) are on the point of appreciation of circumstantialevidence. Further, judgment in the case of Rajesh vs State(supra) has highlighted the aspect of defective investigationspecially in respect of search and seizures. Though the benefitof doubt has been given in these judgments for the aspectsmentioned therein, but it is extremely important to note thatwe are not considering the main appeal for final hearing.