1 16 appa445.26.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (APPA) NO.445 OF 2026 WITH CRIMINAL APPEAL NO.298 OF 2026. Aasif s/o Sherkha Pathan vs. The State of Mah., thr.PSO PS Chichgarh, Tahsil Deori, District Gondia Office Notes, Office Memoranda of Court' s or Judge' s Order Coram, appearances, Court' s Orders or directions and Registrar' s order Shri C.R.Thakur, Counsel for the Applicant/Appellant. Shri S.V.Narale, APP for the Respondent/State. CORAM : URMILA JOSHI-PHALKE & RAJ D.WAKODE, JJ. DATED : 04 SEPTEMBER, 2026. 1. Heard learned counsel Shri C.R.Thakur for the applicant/appellant and learned Additional Public Prosecutor Shri S.V.Narale for the respondent/State. 2. By this application, the applicant/appellant is seeking suspension of sentence and releasing him on bail. 3. By judgment and order dated 29.6.2024 passed by learned Sessions Judge, Gondia in Sessions Trial No.130/2021, the applicant/appellant is convicted for offences under Sections 302 and 120-B read with 34 of the IPC and sentenced to undergo imprisonment for life and to pay fine Rs.10,000/-, in default, to undergo RI for six months. 4. The applicant/appellant is prosecuted along with other co- accused on allegation that he has committed murder of deceased prior to 23.6.2021. As per the prosecution case, on 23.6.2021, a dead body of a female was found lying by the side of the road proceeding 2026:BHC-NAG:11848-DB 2 16 appa445.26.odt towards village Dhasgad. Clothes of the said woman were soaked in blood. Her age was between 20-22 years and on observing the dead body, it was observed that her throat was cut by a sharp edged weapon. The said woman was handicapped by right leg. 5. On the basis of report filed by the Police Patil of the said village, wheels of investigation started rotating. During the investigation, the Investigating Officer has drawn spot and inquest panchanamas, and recorded relevant statements witnesses. During the investigation, involvement of the applicant/appellant along with co-accused Sameer was involved. The deceased was the wife of Sameer. During the investigation, incriminating weapon knife was also seized at the instance of the accused. After completion of the investigation, chargesheet came to be filed. 6. Learned counsel for the applicant/appellant submitted that the case is completely rested on circumstantial evidence. As far as role of the applicant/appellant is concerned, there is no direct evidence to connect him with the alleged offence except recovery of the knife and CA Report. No blood stains are found on the knife. It was mere suspicion and there is nothing on record to connect the applicant/appellant with the alleged offence. He submitted that considering nature of allegations and the evidence collected during the investigation, it is not sufficient to warrant conviction against the applicant/appellant. He submitted that even accepting the case as it is, at this stage, only circumstance of recovery of the weapon at the instance of the accused is not sufficient to warrant conviction and, therefore, the applicant/appellant has made out a case for suspension of sentence. 7. Learned APP for the State has strongly opposed the said contentions and submitted that there is incriminating evidence against 3 16 appa445.26.odt the applicant/appellant that the incriminating article weapon was recovered at the instance of the present accused and, therefore, at this stage, whether the weapon was having blood stains or not, is re- appreciation of the evidence. At this stage, only whether the applicant/appellant is having any chance of success in the present appeal is to be looked into. 8. After hearing both sides and perusing the entire evidence, admittedly, the entire case is rested on circumstantial evidence. There is no dispute that the incriminating weapon was recovered at the instance of the accused. The medical officer has given opinion that injuries on the person of the deceased are possible by the weapon. Though the recovery is after 21 days of the incident, at this stage, it would not be proper on the part of the court to appreciate the evidence in the light of the facts and that is a matter of appreciation at the time of deciding the appeal. The mobile phones are also seized at the instance of the accused wherein communications between two accused also reveal. Sim-cards are seized from accused Prafulla, Sameer, and Aasif who is the present applicant/appellant. CDRs; SDRs, and tower location details show that they were nearby the spot of the incident. 9. Thus, considering the incriminating evidence in the nature of electronic evidence i.e. CDRs; SDRs, and tower location details, additionally, recovery of the weapon at the instance of the accused, at this stage, it is sufficient to show involvement of the applicant/appellant. Therefore, at this stage, learned counsel for the applicant/appellant could not point out that there is any chance of success in the present appeal as far as role of the applicant/appellant is concerned. 4 16 appa445.26.odt 10. The Hon’ble Apex Court in Omprakash Sahni vs. Jai Shankar Chaudhari and anr, reported in (2023) 6 SCC 123, after considering catena of decisions, in paragraph No.33, 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”. 11. In view of the above observations of the Hon’ ble Apex Court, no case is made out to grant relief of suspension of sentence and, 5 16 appa445.26.odt therefore, the application deserves to be rejected and the same is rejected. 12. The record and proceedings are already called. 13. Office to prepare the paper book and list the appeal for final hearing after preparation of the paper book. Application stands rejected and disposed of. [JUDGE] [JUDGE] !! BrWankhede !! Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge Date: 08/09/2026 10:02:04