(1) 29.appa.603.2026 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (APPA) NO.603 OF 2026 IN CRIMINAL APPEAL NO.219 OF 2026 Shriram s/o Kajadan Gawande Vs. State of Maharashtra, Through Police Station Officer, Police Station, Civil Lines, District Akola -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri. Anil Mardikar, Senior Advocate a/b Shri. Sameer Purwar, Advocate for the applicant/appellant. Shri. V. A. Thakare, APP for State. CORAM : URMILA JOSHI-PHALKE AND RAJ D. WAKODE, JJ. RESERVED ON : 25.08.2026 PRONOUNCED ON : 01.09.2026 1. By this application, the applicant is seeking suspension of sentence and releasing him on bail. The Hon’ble Supreme Court of India has consistently observed that the application for suspension of sentence should be heard and decided, if in any case, the criminal appeal could not be heard finally. However, considering the age of the applicant, who is 65 years old, when the matter was called, at the outset, we expressed before the learned Senior counsel that the appeal can be decided expeditiously considering the age of the applicant-appellant. However, learned Senior counsel Shri Anil Mardikar insisted for hearing the present criminal application for suspension of sentence instead of hearing the criminal appeal finally. 2026:BHC-NAG:11534-DB (2) 29.appa.603.2026 2. After hearing both the parties, i.e. the learned Senior counsel for the applicant and the learned APP for the State, when we expressed before the learned Senior counsel that we were not inclined to suspend the sentence of the applicant and again offered to hear the criminal appeal finally, if the applicant withdraws the present criminal application, Shri Anil Mardikar, learned Senior counsel for the applicant requested for some time to seek instructions from his client. After some time, Shri Anil Mardikar, learned Senior counsel for the applicant, upon instructions, submitted that the applicant wants us to decide the present criminal application instead of finally hearing the criminal appeal and accordingly requested to pass the order. In view of aforesaid facts, we proceed to decide the present criminal application. 3. The applicant/appellant was charged along with the other accused, on an allegation that he has formed an unlawful assembly and in furtherance of the common object of that assembly, he committed the murder of Kisanrao Hundiwale due to the political rivalry and thereby committed an offence punishable under Sections 143, 147, 148, 302, 323, 327, 506, 201 read with Section 149 and 109 of the Indian Penal Code (hereinafter referred to as “IPC”). 4. As per the allegations, the deceased was running Swami Vivekanand English High School at Khetan Nagar, Akola and Swami Vivekanand Primary Marathi School, Malkapur, Akola, under the management of the Society Swami Vivekanand Rastriya Shikshan Prasarak Mandal, Akola. There was a dispute regarding the selection process in the (3) 29.appa.603.2026 management of the said Society which was pending since 2014 before the Charity Commissioner. The deceased has also lodged the complaint against the present applicant and other co-accused with the Anti-Corruption Bureau regarding acquisition of the properties by accused through illegal means. On that count, on 06.05.2019, when the deceased had been to the Court of the Charity Commissioner all the accused, in furtherance of their common object, arrived there and committed murder of the deceased. 5. After appreciating the evidence, especially the evidence of eye witnesses, namely, PW-8 Pravin Hundiwale son of the deceased, PW-6 Nitin Dhoot Advocate and PW-7 Rajesh Wankhade as well as other medical and the circumstantial evidence, the learned Trial Court held the present applicant/accused guilty and convicted him for the offence punishable under Section 302 of IPC and sentenced to undergo imprisonment of life and fine of Rs.5,000/-, in default to suffer rigorous imprisonment for six months. The applicant is also convicted under the other offences also. 6. Being aggrieved and dissatisfied with the same, present appeal is preferred along with the application for suspension of sentence. 7. Heard learned Senior counsel Mr. Mardikar for the appellant/accused, who vehemently submitted that the Trial Court has believed PW-6 Nitin Dhoot, PW-7 Rajesh Wankhade and PW-8 Pravin Hundiwale. PW-8 Pravin Hundiwale is the son of the deceased. After the incident, he gave an interview to (4) 29.appa.603.2026 the media, which shows that he came on the spot subsequent to the incident. He also pointed out from the other evidence that his presence at the spot of incident was after occurrence of the incident. He also pointed out from the evidence that PW-7 Rajesh Wankhade, who is the Police Constable, his evidence is also not trustworthy, as the evidence of PW-10 Kailash Mantu Nagre shows that PW-7 Rajesh Wankhade was deputed on duty at Barshitakali, therefore, his presence at the spot of incident is highly doubtful. Coming to the evidence of PW-6 Nitin Dhoot, learned Senior counsel has pointed out that as per the evidence of PW-6, his statement was recorded immediately on 07.05.2019. Whereas there is nothing on record to show that immediately on the second of incident his statement was recorded. On the contrary, the evidence of the Investigating Officer discloses that he was not available to record his statement on 07.05.2019. The cross-examination of PW-6 also makes his evidence doubtful. He submitted that there are variances in the evidence of PW-6 Nitin Dhoot. He has taken us through the entire evidence of PW-6 Nitin Dhoot and submitted that this witness has specifically stated that his statement was not recorded on 09.05.2019, but it was recorded on 07.05.2019, whereas the evidence of the Investigating Officer shows that when he approached PW-6 for recording his statement on 07.05.2019, the witness was not found at his home. Thus, on the basis of this submission, he submitted that the appellant/applicant is having many arguable points in the present appeal. However, the appeal would takes its own time for its final disposal and, therefore, the application deserves to be allowed. (5) 29.appa.603.2026 8. Per contra, learned APP strongly opposed the said contention and submitted that merely because his statement was not recorded on 07.05.2019 and was recorded on 09.05.2019 is not sufficient to discard his evidence. His presence at the spot of incident appears to be natural as he is a practising Advocate. The alleged incident has taken place in the Court premises of the Charity Commissioner. He submitted that at this stage, it would not be proper to say that PW-6 Nitin Dhoot, PW-7 Rajesh Wankhade and PW-8 Pravin Hundiwale are unbelievable witnesses. He submitted that the law as regards suspension of sentence is well settled. Reappreciation of the evidence is not permissible. In view of that, the application deserves to be rejected. 9. After hearing both sides and on perusal of the entire material, the learned Senior counsel canvassed that the eye witnesses on which the prosecution relied upon are not at all trustworthy witnesses. He pointed out from the evidence that the evidence of PW-6 Nitin Dhoot is not believable, as there are various inconsistencies in his evidence. Moreover, his evidence is not supported with the fact that his statement was not recorded on 07.05.2019, but it was recorded on 09.05.2019. Moreover, he is interested witness as there was a sell transaction between the deceased and this witness. As far as PW-8 Pravin Hundiwale is concerned, he submitted that he came on the spot of incident after the incident and presence of PW-7 Rajesh Wankhade is not at all possible as he is a Police Constable and was deputed on duty at Barshitakli. The prosecution has also relied on medical evidence and other circumstantial evidence i.e. recoveries of the incriminating (6) 29.appa.603.2026 articles at the instance of the other co-accused. Learned Senior counsel Mr. Mardikar further submitted that except the allegation that the present applicant instigated the other co- accused and on his instigation, the deceased was assaulted by the co-accused. Thus, no overt act is attributed to the present applicant. He is aged about 65 years. Considering he is at an advanced age and no role in actual assault is attributed to him and the nature of the evidence against him, the sentence be suspended. 10. The law as regards suspension of sentence by the appellate Courts in exercise of powers under Section 389 of the Code of Criminal Procedure is well settled. Ordinarily, if the sentence is for a fixed term, the court may exercise its discretion leniently in suspending such sentence of fixed term, pending the final disposal of the Criminal Appeal of the convict. Even in cases where the sentence is for a fixed term, and if there are exceptional circumstances, then the Court may decline to suspend the sentence. What could be those exceptional circumstances is not something exhaustive. It is for the Court concerned to look into those exceptional circumstances as may be pointed out by the State. However, the only consideration that should weigh with the appellate court while considering the plea for suspension of sentence of life imprisonment is that the convict should be in a position to point out something very palpable or a very gross error in the judgment of the Trial Court on the basis of which he is able to make good his case that on this ground alone, his appeal deserves to be allowed and he be acquitted. (7) 29.appa.603.2026 11. From perusal of Section 389 of the Code of Criminal Procedure, it is evident that save and except the matter falling under the category of sub-section 3 neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption in favour of the accused regarding innocence till contrary recorded by the court of the competent jurisdiction. There is a distinction between prayer for bail at the pre-conviction stage as well as the post-conviction stage. The Hon’ble Apex Court 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, after considering the catena of decisions observed in Para No.33 as follows: “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 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 (8) 29.appa.603.2026 few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach.” 12. As far as the contention of the learned Senior counsel that there is no specific role attributed to the present appellant/applicant as far as the assault is concerned, admittedly, he was charged with an offence under Sections 143, 147, 302 read with Section 149 of IPC. Section 149 of IPC has its foundation on constructive liability which is the sine qua non for its operation. Section 149 of the IPC makes every member of an unlawful assembly at the time of the committing of the offence guilty of the offence. The section creates a vicarious liability for the unlawful acts committed pursuant to the common object by any other member of the assembly. The basis of such constructive liability is mere membership of such assembly with the requisite common object or knowledge. Therefore, once the Court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as a members of that assembly knew to be likely to be committed in prosecution of that object, every member of that unlawful assembly is to be held guilty of that offence. It cannot be laid down as a general proposition of law that unless an overt act is proved against the person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. Even if no overt act is attributed to a particular person, when the charge is under Section 149 of IPC, the presence of the accused as a (9) 29.appa.603.2026 part of unlawful assembly is sufficient for conviction. Therefore, the submission of the learned Senior counsel that there was no overt act attributed to the present applicant cannot be accepted at this stage. At this stage, after considering the evidence of PW-6 Nitin Dhoot, wherein the involvement of the present appellant/applicant reveals and as far as the arguable points are concerned, we are not satisfied that the Senior counsel of the applicant succeeded in showing something palpable which required to be seen that the something which is very apparent or gross on the face on record, which prima facie satisfy the Court that the conviction may not be sustainable. Here, no such facts are brought on record during the submissions, therefore, we are unable to accept the contention of the learned Senior counsel. 13. For all above reasons and in view of above discussion, we are of the opinion that this is not a fit case wherein the suspension can be granted for the execution of the sentence. In view of that, the application deserves to be rejected. Accordingly, we proceed to pass following order: ORDER The application is rejected. (RAJ D. WAKODE, J) (URMILA JOSHI-PHALKE, J) Sarkate Signed by: Mr. A.R. Sarkate Designation: PA To Honourable Judge Date: 02/09/2026 14:58:50