High Court
Facts
{1} APPLN-551-2025IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 551 OF 2025INCRIMINAL APPEAL NO. 399 OF 2024Ghungrusingh s/o Jagbirsingh Tak Age- 38 years, Occ. ServiceR/o. Balajinagar, Nanded....APPLICANTVERSUSThe State of Maharashtra...RESPONDENTMr. N.S. Ghanekar, Advocate for applicantMrs. S.N. Deshmukh, APP for respondent-State ....... CORAM : NITIN B. SURYAWANSHI AND MANJUSHA DESHPANDE, JJ. RESERVED ON :30.04.2025 PRONOUNCED ON:07.05.2025 ORDER :1.Applicant is convicted under Sections 307, 324, 323,504, 506, 143, 147, 148 and 149 of Indian Penal Code bylearned Additional Sessions Judge, Nanded in Sessions Case No.15 of 2022.2.Criminal appeal filed by applicant challenging hisconviction is admitted by this Court. By order dated 07.05.2024substantive sentence of imprisonment imposed on the applicantis suspended and he is released on bail, during the pendency ofBhagyawant Punde {2} APPLN-551-2025the appeal. By this application, applicant seeks stay of hisconviction recorded by the Trial Court on the ground thatapplicant is a police constable and he is falsely implicated in thecrime and he is convicted on the basis of non substantiveevidence, which is inadmissible. It is contended that on15.05.2024 he received a show cause notice of dismissal fromservice issued by Superintendent of Police, Nanded. He repliedthe said notice, however, order of dismissal from service isissued to him on 29.01.2025. He is sole bread earner of thefamily and because of false conviction his entire career is atstake and if he is terminated from service he will sufferirreparable loss. Hence, he has prayed for stay of conviction.3.Learned advocate for the applicant argued on thelines of above noted averments made in the application.4.By relying on the written notes of arguments learnedAPP has opposed the application. She submitted that noexceptional circumstance is made out by the applicant to stay hisconviction. She submitted that applicant is already dismissedfrom service and therefore there is no merit in the applicationand same may be dismissed.Bhagyawant Punde {3} APPLN-551-20255.Heard learned advocate for the applicant and learnedAPP for State at length. Perused the record.6.Record indicates that on 21.06.2021, applicant andco-accused assaulted Sanjay Devkar and his father SambhajiDevkar. Applicant assaulted Sanjay with sword. Due to theassault Sanjay sustained grievous injuries at his left palm tillwrist joint and also sustained fracture of wrist joint. FIR waslodged by Sanjay at the hospital while receiving treatment. Inthe FIR specific role of assault by sword is attributed by Sanjay,to the applicant. Applicant is police constable and documents onrecord show that on the date of incident he was not on duty. Thesword used by the applicant was seized at the instance of co-accused Kripalsingh. Applicant was absconding and was arrestedon 12.10.2021. There are cross cases filed by applicant’s sideagainst Sanjay Devkar and Sambhaji Devkar, in which applicantand co-accused have not supported the prosecution andtherefore they both were acquitted. In the present case alsoinformant, his father and the eye witnesses have not supportedthe prosecution. However, the Trial Court on the basis ofrecovery of weapon, clothes at the instance of other accused,portion marked statements from the FIR, statements of injured,Bhagyawant Punde {4} APPLN-551-2025which were proved in the evidence of investigating officer andthe medical papers held that prosecution has proved the chargeagainst the accused persons. 7.Law is well settled on the point of stay of conviction.The Apex Court in Afjal Ansari vs. State of Uttar Pradesh, (2024)2 SCC 187 has held;“It becomes manifestly evident from the plainlanguage of the provision, that the Appellate Court isunambiguously vested with the power to suspendimplementation of the sentence or the order ofconviction under appeal and grant bail to theincarcerated convict, for which it is imperative toassign the reasons in writing. This Court hasundertaken a comprehensive examination of thisissue on multiple occasions, laying down the broadparameters to be appraised for the suspension of aconviction under Section 389(1) of the Cr.P.C. There isno gainsaying that in order to suspend the convictionof an individual, the primary factors that are to belooked into, would be the peculiar facts andcircumstances of that specific case, where the failureto stay such a conviction would lead to injustice orirreversible consequences. [Ravikant S. Patil vs.Sarvabhouma S. Bagali, (2007) 1 SCC 673] The verynotion of irreversible consequences is centered onfactors, including the individual’s criminalantecedents, the gravity of the offence, and its widersocial impact, while simultaneously considering thefacts and circumstances of the case.”8.Turing to the case in hand, it is a matter of recordthat applicant and co-accused are convicted in spite of the factBhagyawant Punde {5} APPLN-551-2025that injured informant, his father and eye witnesses have turnedhostile. The Trial Court has convicted applicant (accused No. 3)and co-accused (accused No. 1, 2, and 4) by relying uponevidence of other prosecution witnesses, documents proved bythe prosecution comprising of FIR of PW1 Sanjay, portionmarked (Exhibit-86) from the statement of Sambhaji Devkar,statement of Anil Mathpati from R.C.C. No. 10 of 2023 atExhibit-98, respective FIR at Exhibit-111, spot panchnama,seizure panchnamas of clothes of accused No. 1 and 2 as well asinformant Sanjay Devkar, PW1, memorandum disclosurestatement and seizure panchnama at the instance of accused No.1, medical evidence of Dr. Devendrasingh Paliwal, PW4, injurycertificate, medical case papers of treatment of Sanjay, PW1,and arrest panchnamas of the accused.9.It is required to be noted here that the Trial Court inits judgment has observed that accused persons including theapplicant have tampered with prosecution evidence andinformant, his father and eye witnesses. Accused persons evenevaded framing of charge. When charge was framed andexplained to the applicant and co-accused, they refused to signthe statement of their plea, though they have pleaded not guilty.Bhagyawant Punde {6} APPLN-551-2025All these circumstances weigh against the applicant whileconsidering his prayer for stay of conviction.10.The Apex Court in State of Maharashtra vs.Balakrishna Dattatraya Kumbhar, (2012) 12 SCC 384 has held;“the appellate court in an exceptional case, may putthe conviction in abeyance along with the sentence,but such power must be exercised with greatcircumspection and caution, for the purpose of which,the applicant must satisfy the court as regards theevil that is likely to befall him, if the said conviction isnot suspended. The court has to consider all the factsas are pleaded by the applicant, in a judicious mannerand examine whether the facts and circumstancesinvolved in the case are such, that they warrant sucha course of action by it. The court additionally, mustrecord in writing, its reasons for granting such relief.Relief of staying the order of conviction cannot begranted only on the ground that an employee maylose his job, if the same is not done.”11.In Shyam Narain Pandey v. State of U.P., (2014) 8SCC 909, it is held that;“11.In the light of the principles stated above, thecontention that the appellant will be deprived of hissource of livelihood if the conviction is not stayedcannot be appreciated. For the appellant, it is amatter of deprivation of livelihood but he is convictedfor deprivation of life of another person. Until he isotherwise declared innocent in appeal, the stainstands. The High Court has discussed in detail thebackground of the appellant, the nature of the crime,manner in which it was committed, etc. and hasBhagyawant Punde
Legal Reasoning
{7} APPLN-551-2025rightly held that it is not a very rare and exceptionalcase for staying the conviction.” 12.Applicant being police constable has attempted tocommit murder of PW1 Sanjay Devkar and until he is otherwisedeclared innocent in the appeal, the stain stands. Applyingaforesaid ratio to the facts of the present case, we find thatapplicant has not made out any exceptional case for staying hisconviction.13.In the present case, applicant being police constablewas duty bound to maintain law and order and peace. But he hastaken law in his hands and inflicted grievous injuries by sword inan attempt to commit murder of Sanjay Devkar PW1. Taking intoconsideration the gravity of offence committed by applicant andits social impact, we are of the considered view that this is not afit case to grant stay to the conviction of the applicant.14.For the aforestated reasons, we find no merit in thepresent application, the Application is therefore dismissed.(MANJUSHA DESHPANDE, J.) (NITIN B. SURYAWANSHI, J.)Bhagyawant Punde