Bombay HC (Aurangabad Bench), R.G. Avachat & Neeraj P. Dhote, JJ. (Per Court), 12.08.2024 - Criminal Application No. 1318 of 2024 in Criminal Appeal No. 304 of 2023. Applicant sought suspension of the substantive sentence imposed by judgment and order dated 01.03.2023 of the Additional Sessions Judge, Ambad in Sessions Case No. 227 of 2021, whereby he was convicted for an offence punishable under Section 302 IPC for the death of a fellow worker in a bakery at Tirthpuri on the night of 22.02.2021; the prosecutions' case was admittedly based on circumstantial evidence, and the trial Court had convicted him on the ground of failure to explain the circumstances of death as envisaged under Section 106 of the Indian Evidence Act. Counsel for the applicant urged an immediately raised alarm of thieves, absence of flight, a probable defence, C.A. reports showing no blood of the deceased on his clothes, inconclusive blood-group result, over three years spent in custody and no criminal antecedents; the A.P.P. opposed, contending the applicant was the author of the crime. Recalling the well-settled five principles laid down in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116, the Division observed that the record showed a fifteen-day-old quarrel, the applicant alerting P.W.6, a prior attempt of theft at the bakery, no axe in the bakery before the incident, testimony of the bakery owner that the applicant was an honest person, no blood of the deceased on his clothes, and injuries suffered by the applicant whose injury certificate the prosecution did not prove; in its prima facie view the applicant's defence cannot be lightly brushed aside, and there being no possibility of the appeal being heard in the near future, the execution of the substantive sentence was suspended pending the appeal, with release on a P.R. bond of Rs.15,000/- with one surety in the like amount. The criminal application stood disposed of accordingly.
