1 14 appa626.26.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION APPA NO.626 OF 2026 IN CRIMINAL APPEAL NO.511 OF 2023 Dinesh s/o Shaligram Modkar and ors ..vs.. State of Mah., thr.the PSO PS : Shegaon Rural, Taluka Shegaon, District Buldhana Santosh Sanjay Ghodake : Applicant Office Notes, Office Memoranda of Court' s or Judge' s Order Coram, appearances, Court' s Orders or directions and Registrar' s order Shri P.R.Jalit, Counsel for the Applicant/Appellant. Shri A.M.Madiwale, APP for the Respondent/State. CORAM : URMILA JOSHI-PHALKE & RAJ D.WAKODE, JJ. DATED : 04 SEPTEMBER, 2026. 1. Heard learned counsel Shri P.R.Jalit for the applicant/appellant and learned Additional Public Prosecutor Shri A.M.Madiwale for the respondent/State. 2. By this application, applicant/appellant Santosh Sanjay Ghodake, who is original accused No.3, is seeking suspension of sentence during pendency of the present appeal. 3. By judgment and order dated 1.4.2023 passed by learned Special Judge, Khamgaon, district Buldana in Sessions Trial No.122/2019, the applicant/appellant is convicted for offence under Section 302 read with 34 of the IPC and sentenced to 2026:BHC-NAG:11849-DB 2 14 appa626.26.odt undergo life imprisonment and to pay fine Rs.20,000/-, in default, to undergo two months simple imprisonment. He is further convicted for offences under Section 3(1)(r); 3(1)(s); 3(2)(v), and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Learned counsel for the applicant/appellant submits that as per allegations levelled against the applicant/appellant, on 1.5.2019, along with other co-accused, the applicant/appellant has assaulted the deceased by abusing him on his caste. As per allegations, the applicant/appellant assaulted by means of a stick. In the said incident, death of the deceased is caused. During investigation, the Investigating Officer has recorded various statements and after completion of the investigation, submitted chargesheet against the accused. He submits that during evidence, the prosecution has examined material witnesses. As far as eyewitnesses of the said incident are concerned, they have not attributed any specific role to the applicant/appellant. General allegations are levelled against the applicant/appellant. He invites our attention towards the impugned judgment and submitted that the impugned judgment also discloses that general role is attributed to the applicant/appellant. He also points out that with the similar role, the other co- accused Nandkishor Sanjay Ghodake is already released on bail by suspending the sentence. The similar role is attributed to the applicant/appellant. 3 14 appa626.26.odt He has also taken us through the entire evidence including evidence of the informant who has not assigned any role to the applicant/appellant while lodging the FIR and subsequently improved her version. Thus, he submitted that considering nature of offence, the applicant/appellant is having every chance of success in the appeal. However, the appeal would take its own time for final disposal and, therefore, execution of the sentence be suspended and the applicant/appellant be released on bail during the pendency of the appeal. 4. Learned APP for the State has strongly opposed the said contentions and submitted that a specific role is attributed to the applicant/appellant who was sharing common intention with the other co-accused. The findings given by the Sessions Court show that in furtherance of the common intention, the deceased was not only abused on his caste but also he was assaulted mercilessly and death of the deceased was caused and, therefore, the application deserves to be rejected. 5. On hearing both sides and going through the entire record, it reveals that a specific role is narrated by all witnesses. As far as other co-accused are concerned, we have also perused evidence of eyewitnesses including the informant who is the wife of the deceased. Admittedly, she has not assigned any specific role to the applicant/appellant while lodging the FIR. Subsequently, she has improved her version. The evidence of other witnesses appears to be general in nature. 6. Admittedly, this is not a stage wherein nature of evidence is to be appreciated. What is to be looked into is, whether the 4 14 appa626.26.odt applicant/appellant is having any chance of success in present appeal and whether the applicant/appellant could point out that he should be acquitted on the basis of this evidence. 7. This aspect is considered by the Hon’ble Apex Court in the case of Omprakash Sahni vs. Jai Shankar Chaudhari and anr, reported in (2023) 6 SCC 123, wherein after considering catena of decisions, in paragraph No.33, it is observed as follows: 33. “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 Code of Criminal Procedure and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach”. 8. In the case in hand, after considering the nature of the evidence, the applicant/appellant has succeeded in showing that 5 14 appa626.26.odt he is having chance of success in the present appeal. Admittedly, the appeal would take its own time for its final disposal and, therefore, the present application requires consideration. 9. In this view of the matter, we proceed to pass following order: ORDER (1) The Criminal Application is allowed. (2) The judgment and order dated 1.4.2023 passed by learned Special Judge, Khamgaon, district Buldana in Sessions Trial No.122/2019 shall stand suspended during the pendency of the present appeal. (3) Applicant/appellant Santosh Sanjay Ghodake shall be released on bail on executing a P.R.Bond of Rs.25,000/- with one solvent surety of the like amount. (4) The applicant/appellant shall attend the Trial Court on 10th day of every month and the Trial Court shall record his presence, till disposal of the appeal. (5) The applicant/appellant shall furnish names of his two relatives along with their residential address proofs at the time of furnishing the surety. (6) The Criminal Application is disposed of. CRIMINAL APPEAL NO.511 OF 2023 1. Heard. 6 14 appa626.26.odt 2. As two of appellants are still behind the bars and Paper Book is already prepared, the appeal be listed for final disposal on 6.10.2026. [JUDGE] [JUDGE] !! BrWankhede !! Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge Date: 08/09/2026 10:06:57