Digitally signed NISHA b Sy A NN DIS EH EA P SANDEEP CHITNIS CHITNIS Date:

2023.11.20

14:53:53 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION INTERIM APPLICATION NO.4204 OF 2023 (FOR SUSPENSION OF SENTENCE/BAIL)

IN CRIMINAL APPEAL NO.964 OF 2022 Sagar Sambhaji Gole ...Applicant Orig. Accused No.7 Versus State of Maharashtra ...Respondent Mr. Priyal G. Sarda for the Applicant.

Ms. P. P. Shinde, A.P.P for the Respondent – State.

Ms. Poonam Bodake-Patil, for the Original Complainant.

CORAM : REVATI MOHITE DERE &

GAURI GODSE, JJ.

DATE : 10^th NOVEMBER 2023 P.C. :

1. Heard learned counsel for the parties.

2. By this application, the applicant (original accused No.7) seeks suspension of his sentence and enlargement on bail, pending the hearing and final disposal of the aforesaid appeal.

3. The applicant vide judgment and order dated 30^th January 2021, passed by learned Additional Sessions Judge, Pune, in Sessions Case No. 460/2015, have been convicted and sentenced as under:

— for the offence punishable under Section 302 r/w 34 of the Indian Penal Code, to suffer imprisonment for life and to pay fine of Rs.5,000/- each, in default, to suffer rigorous imprisonment for three months;

— As far as offences punishable under Section 120B of the Indian Penal Code and Section 4 r/w 25 of the Arms Act, 1959 are concerned, the applicant is acquitted of the said offences.

4. Learned Counsel for the applicant seeks bail on the ground of parity. He submits that the main accused - Pappu Ganpat Uttekar’s sentence has been suspended and he has been enlarged on bail by the Apex Court and that even the Review Petition filed by the complainant against the said order has also been dismissed by the Apex Court. He submits that the applicant stands on a better footing than that of accused – Pappu Uttekar and some other accused, whose sentences have been suspended and who have been enlarged on bail. He claims parity with co-accused – Vaibhav Prabhakar Shelar, whose sentence has been suspended and who has been enlarged on bail vide order dated 11^th October 2023. He submits that the applicant is in custody for last 8 years and 2 months.

5. Learned APP fairly states that there is parity with co- accused, whose sentence has been suspended and who has been enlarged on bail. She also does not dispute the fact that the applicant is incarcerated for last 8 years and 2 months.

6. Learned counsel for the respondent No.2 vehemently objected to the grant of bail.

7. On 9^th November 2023, it was pointed out to us that the applicant has 3 antecedents and hence in view thereof, the learned counsel for the applicant made a submission that if the applicant is enlarged on bail, he will not enter the jurisdiction of Paud Police Station, Taluka Mulshi, District – Pune, until final disposal of his appeal. Accordingly, we directed the applicant to file an affidavit- cum-undertaking to that effect and accordingly permitted him to affirm the said affidavit before the Superintendent, Nashik Road Central Prison. Pursuant thereto, the learned counsel for the applicant has tendered an affidavit of the applicant dated 9^th November 2023. The same is taken on record. In para 2 of the said affidavit, it is stated as under:-

“2) I Say & Submit that if my present Interim Application for Suspension of Sentence/Bail will get allowed, I hereby giving my undertaking that I will not enter the jurisdiction of Paud Police Station Tal. Mulshi, Dist. - Pune, until final disposal of my Appeal.”

8. Perused the papers. The prosecution case rests on direct as well as circumstantial evidence. The sole eye-witness, in the present case, is the complainant (brother of the deceased- Eknath) i.e. PW 1-Kashinath Kudhale. Kashinath Kudhale, in his evidence, has stated that the incident took place on 1^st December 2014 at about 8:30 a.m. He has stated that when he was proceeding from Rameshwar Temple, he saw a i-10 car of his brother-Eknath standing in front of the temple; that 10 to 12 persons we