1 CRIAPPEAL315-26.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (APPA) NO.467/2026 IN CRIMINAL APPEAL NO.315/2026 (SHUBHAM VILAS KAWADATI VERSUS THE STATE OF MAHARASHTRA, THR. PSO PS NARKHED, TAHSIL NARKHED, DISTRICT NAGPUR) Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions Court's or Judge's order and Registrar's orders. Shri A.D. Tote, Advocate (Appointed) for the applicant-appellant. Shri A.A. Madiwale, Additional Public Prosecutor for the non-applicant/respondent. CORAM : URMILA JOSHI-PHALKE AND RAJ D. WAKODE , JJ. D ATE : AUGUST 24, 2026 P. C. By this application, the applicant is seeking suspension of sentence and release on bail. 2. The applicant is the original accused who is convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 and is sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- and in default of paying fine, he shall further undergo rigorous imprisonment for one year; for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code, 1860 and is sentenced to suffer rigorous imprisonment for one year and shall pay fine of Rs.1,000/- and in default of paying fine, he shall further undergo rigorous imprisonment for three months; for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code, 1860 and is sentenced to suffer rigorous imprisonment for four years and to pay fine of Rs.3,000/- and in default of paying fine, he shall further undergo rigorous imprisonment for nine months. 3. As per the prosecution case, informant Hamesh was residing at village Bellona. On 18.07.2021, Hamesh alongwith Roshan Banait and Madhav Alone had been to the agricultural field of Devidas 2 CRIAPPEAL315-26.odt Maraskolhe to consume liquor where there was hot exchange of words between deceased and injured on one side and accused persons on the other, wherein two persons sustained injuries and one person succumbed to death. On the basis of the said report the police has registered the crime against the present applicant. During the prosecution has examined the witnesses including two injured eye witnesses and two independent witnesses. On the basis of evidence of PW1 Hamesh Banafar, PW2 Madhav Alone who are injured witnesses and PW3 Naresh Uikey and PW4 Raju Thombre and considering the medical evidence, the trial Court has convicted the present applicant. Being aggrieved, the present applicant has preferred the instant appeal. 4. Heard learned counsel for the applicant who submitted that the entire prosecution evidence is doubtful as the spot of incident as well as the evidence of PW1 and PW2 is suspicious. He submitted that the identification parade was not held as per the procedure laid down in the criminal manual. Considering the evidence of PW1 and PW2 in the light of spot panchnama which appears to be doubtful, the appeal would take its own time for its final disposal. In the meantime, if the sentence is executed, then the appeal would become infructuous. 5. Per contra, the learned Additional Public Prosecutor strongly opposed the application and submitted that the four witnesses are examined by the prosecution to prove the charges in this case and the medical evidence is also supportive that the death of deceased is homicidal one whereas the injuries sustained by the injured witnesses were also grievous in nature. So far as other circumstantial evidence like the recovery panchnama is concerned, the prosecution has established its case and therefore the application deserves to be rejected. 3 CRIAPPEAL315-26.odt 6. On hearing the learned counsel for both the parties and perusal of the entire evidence on record as well as the impugned judgment, it has to be seen whether the accused has succeeded in showing that there are chances of his acquittal on the basis of this evidence. Admittedly, at this stage the re-appreciation of the evidence is not permissible. What is to be looked into is that whether the accused is able to show that the evidence which is adduced by the prosecution is not sufficient to warrant conviction against him. On a perusal of the entire evidence, there is no dispute as to the fact that PW1 and PW2 had sustained injuries in the said incident. Law is settled as far as the appreciation of the evidence of the injured eye witnesses is concerned which shows that the evidence of injured eye witnesses is at a higher pedestal. This evidence of the injured eye witnesses is further corroborated by the PW3 and PW4 who are the independent witnesses. The medical evidence in the nature of evidence of PW8 Dr.Sarang Bahurupi also supports the prosecution case. Thus, at this stage, there is sufficient material on record to show that the trial Court has appreciated the evidence, i.e. oral evidence as well as the medical evidence and thereafter came to the conclusion that the prosecution has proved its case against the applicant-accused and thereby convicted him. 7. The law is settled by the Hon’ble Apex Court in the case of Omprakash Sahni Versus Jai Shankar Chaudhary & Another [Criminal Appeal No.1331-1332 of 2023] where in paragraph 33 it is observed that 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 4 CRIAPPEAL315-26.odt 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 palpable. To put it in other words, something which is very apparent or gross on the face of 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 look up few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach. 8, Here, in the present case, the learned counsel for the applicant has pointed out the omissions and submitted that the omissions are required to be considered while considering the appeal. As already observed, the re-appreciation of the evidence at this stage is not permissible. Moreover, as far as the omissions are concerned, it is required to be considered that the omissions which affect the core of the prosecution case are material omissions. At this stage, we are not in a position to consider that as material omissions. Thus, considering the facts in the present case, the trial Court has appreciated the evidence and thereafter convicted the applicant. The evidence of the eye witnesses appears to be cogent and reliable at this stage and therefore we do not find this is a fit case wherein the discretion to release the accused on bail by suspending his sentence can be exercised. In view of above, the application deserves to be rejected. 5 CRIAPPEAL315-26.odt 9. Accordingly, the criminal application is rejected. (RAJ D. WAKODE, J.) (URMILA JOSHI-PHALKE, J.) APTE Signed by: Apte Designation: Senior Pvt. Secretary Date: 28/08/2026 12:58:51