1 6 appa606.26.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION APPA NO.606/2026 IN CRIMINAL APPEAL NO.132/2025 Nivrutti Dnyandeo Sabe ..vs.. The State of Mah., thr. PSO PS Khamgaon Rural, Taluka Khamgaon, District Buldhana Office Notes, Office Memoranda of Court' s or Judge' s Order Coram, appearances, Court' s Orders or directions and Registrar' s order Shri P.V.Navlani, Counsel & Shri Abhishekh Zade, Advocate for the Appellant. Shri S.S.Hulke, APP for the Respondent/State. CORAM : URMILA JOSHI-PHALKE & RAJ D.WAKODE, JJ. DATED : 08th SEPTEMBER, 2026. 1. Heard learned counsel Shri P.V.Navlani for the appellant and learned APP Shri S.S.Hulke for the respondent/State. 2. This is an application for suspension of sentence and grant of bail by appellant who is original accused No.4. 3. By judgment and order dated 20.8.2024 passed by learned Special Judge, Khamgaon, District Buldhana in Special Case No.39/2020, the appellant is convicted for offence under Section 302 read with 34 of the IPC and sentenced to undergo imprisonment for life and to pay fine Rs.10,000/-, in default to undergo rigorous imprisonment for six months. 4. As per the prosecution case, on 8.3.2020, at about 11:00 to 11:30 am, first informant Dilip Kalaskar received a phone call from Parmeshwar Ranshinge that co-accused Sopan Sabe, Eknath Sabe, Dnyandeo Sabe, and Nivrutti Sabe, who is present appellant, are assaulting his younger brother Rajesh and, 2026:BHC-NAG:11921-DB 2 6 appa606.26.odt therefore, he rushed towards grocery shop of deceased Rajesh and saw that accused persons were assaulting deceased Rajesh. As far as present appellant is concerned, it is alleged that he was holding an iron pipe at the relevant time and he has assaulted deceased Rajesh by means of the iron pipe. On the basis of the FIR, the accused persons were arrayed as accused. 5. During trial, the prosecution placed reliance on evidence of eyewitnesses i.e. PW3 and PW4. Whereas, PW4 is son of deceased Rajesh. On the basis of direct evidence of PW3 and PW4, couple with evidence as to recovery and other circumstantial evidence, the appellant is convicted. 6. Being aggrieved with the same, the present appeal is preferred. 7. Learned counsel for the appellant submits that one of co- accused persons is already acquitted on the basis of the same evidence. He invites our attention towards evidence of PW4, who is son of deceased Rajesh, and submits that the son of deceased Rajesh is testified that the appellant has assaulted deceased Rajesh by means of iron pipe. Whereas, medical evidence nowhere shows that any injury is sustained by deceased Rajesh due to the assault by iron pipe. Thus, he submits that there is contradictory evidence i.e. the medical and oral evidence. 3 6 appa606.26.odt He invites our attention towards evidence of PW9 and submits that PW9 has specifically admitted during cross examination that injuries on the person of deceased Rajesh are by a sharp weapon and not by a blunt weapon like iron pipe. He also invites our attention towards evidence of other Medical Officer PW10 and submits that PW10 who has conducted postmortem also noted injuries on the person of deceased Rajesh and those injuries are by means of a sharp weapon. Thus, he submits that even accepting the prosecution case, as it is, no case is made out against the appellant. However, the trial court has swayed away by the evidence of eyewitnesses who have stated that deceased Rajesh died due to the assault by the iron pipe. He submits that considering there is contradiction in the medical and oral evidence, the appellant has every chance of success in the present appeal. In view of that, execution of the sentence be suspended during pendency of the appeal. 8. Per contra, learned APP for the respondent/State has strongly opposed the said contentions and submitted that evidence of PW3 and PW4, who are eyewitnesses, shows that the death of deceased Rajesh is homicidal one. The evidence is couple with recovery of the weapon and, therefore, all these circumstances are sufficient to show involvement of the appellant. Moreover, the appellant was sharing common intention with other co-accused persons. In view of that, the application deserves to be rejected. 4 6 appa606.26.odt 9. On hearing both sides and perusing the evidence on record, it reveals that PW3 and PW4 have specifically attributed a role to the appellant and specifically stated that the appellant was holding an iron pipe at the relevant time. The medical evidence shows that all injuries are in the nature of stabbed injuries and, puncture and incised wounds. Thus, none of injuries reveals from the evidence of PW9 and PW10 caused by weapon, which was attributed by eyewitnesses, in the hands of the appellant. On the similar set of facts, other co-accused is already acquitted by the trial court. 10. Thus, learned counsel for the appellant has rightly pointed out that the appellant is having many arguable points in the present appeal. 11. Admittedly, at this stage, re-appreciation of the evidence is not permissible. What is to be looked into is, whether there is any material on record which would be sufficient to consider, at this stage, and it can be observed that the appellant is having any arguable points in the present appeal. 12. This aspect is also 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, 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 5 6 appa606.26.odt 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.” 13. In the present case, having perused the evidence, prima facie, we are of an opinion that the appellant has succeeded in showing that he is having chance of success in the present appeal considering there is a contrary medical and oral evidence. 14. In this view of the matter, we proceed to pass following order: ORDER (1) The Criminal Application is allowed. (2) The execution and implementation of the judgment and order of conviction and sentence dated 20.8.2024 passed by learned 6 6 appa606.26.odt Special Judge, Khamgaon, District Buldhana in Special Case No.39/2020 is hereby suspended, till disposal of the present appeal. (3) Appellant - Nivrutti Dnyandeo Sabe shall be released on bail on executing a P.R.Bond in the sum of Rs.25,000/- with one solvent surety of the like amount. (4) The appellant shall attend the trial court on 5th of every month, till disposal of the appeal. (5) The appellant shall furnish names of his two relatives along with their residential address proofs. (6) The appellant shall not leave the jurisdiction of Khamgaon, district Buldhana without prior permission of this court. (7) With these directions, the application is disposed of. CRIMINAL APPEAL NO.132/2025 (1) Heard. (2) R&P is already received and Paper Book is already prepared. (3) Office to list the appeal for final disposal on 23.10.2026. [JUDGE] [JUDGE] !! BrWankhede !! Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge Date: 09/09/2026 10:05:38