Bombay High Court
AKSHAY @ BHIMA BALU DIWATEversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
In the absence of eye‑witness testimony and any material placing the accused at the scene, the conviction rests solely on circumstantial evidence, warranting suspension of the sentence and grant of bail pending appeal.
Summary
The applicant, convicted under Sections 302 and 201 r/w 34 of the IPC for murder and related offences, sought suspension of his life sentence and bail pending appeal. The prosecution’s case was based solely on circumstantial evidence, with no eye‑witnesses and no material directly linking the applicant to the crime scene. The defence argued that identification was unreliable and that the applicant had not made the extortion calls attributed to him. The Court observed that the only incriminating evidence was a liquor bottle purchase and CCTV footage, which did not place the applicant at the time of the murder. Finding the evidential basis insufficient to justify the continued incarceration, the Court suspended the sentence and granted bail on condition of a bond and surety. The interim application was disposed accordingly.
Issues considered
- Whether the conviction and sentence can be suspended pending appeal in the absence of direct evidence and reliance on circumstantial evidence
- Whether bail should be granted to the accused pending the appeal
Legislation cited
- Indian Penal Code — s. 201, 302, 34
Subjects
- murder
- section 302 IPC
- section 201 IPC
- bail pending appeal
- circumstantial evidence
- identification
- suspension of sentence
Judgment
IA-2563-2026.odt
Rohit Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2563 OF 2026
IN
CRIMINAL APPEAL NO. 700 OF 2026
Digitally
signed by
Akshay @ Bhima Balu Diwate …Applicant
ROHIT
ROHIT RAMDAS
RAMDAS GHUGE
GHUGE Date:
2026.10.07
11:06:38
+0530
Versus
The State of Maharashtra …Respondent
_______________________________________________________________
Mr. Aniket Vagal a/w Ms. Savvy Kolhekar a/w Ms. Juhi Kadu, Advocates
for the Applicant.
Ms.Sangeeta D. Shinde, APP for the Respondent-State.
_______________________________________________________________
CORAM: BHARATI DANGRE &
ASHISH S CHAVAN, JJ.
DATE : 24th SEPTEMBER 2026.
PC.
1. The Applicant who is arraigned as Accused No. 2 in the
proceedings before the Trial Court has approached this Court seeking
suspension of sentence imposed on him vide order and judgment dated
27.06.2025 convicting him for offenses punishable under Section 302,
and 201 r/w 34 of the Indian Penal Code, 1860 (“IPC”) and bail pending
Appeal. The Applicant was sentenced to suffer imprisonment for life and
to pay a fine of Rs.5,000/-, in default of which to suffer simple
imprisonment for a period of six months for the offences punishable u/s
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302 r/w 34 of the IPC. The Applicant was sentenced to suffer rigorous
imprisonment for a period of five years and to pay a fine of Rs.1,000/-, in
default of which to suffer simple imprisonment for a period of three
months for the offences punishable u/s 201 r/w 34 of the IPC. Both the
sentences were ordered to run concurrently.
2. Heard, Mr. Vagal, for the Applicant and Ms. Shinde, APP for
Respondent-State, perused the Application and Appeal.
3. The case of the prosecution in a nutshell is that, on 18.03.2017, at
around 8.40 am, while PW No. 1 Informant- PSI of Sahakarnagar Police
Station was on patrolling duty, a Beat Marshal informed him that an
unknown person’s body is lying in an open space at Vanshiv Vasti, Pune.
It appeared that the unknown person was murdered by hitting his face
with a stone. When PW No.1 reached the spot, he saw that a person was
lying in a pool of blood at the said place and two large blood-stained
stones were lying near him. Efforts were made to ascertain the identity of
the deceased, however, it was not revealed. Therefore, the body of the
deceased was sent for inquest and post mortem. Based on the complaint
of PW No. 1, C.R. No. 92 of 2017 was registered against unknown
persons for offences punishable u/s 302, 201, r/w 34 of the IPC. During
the course of investigation, the relative of the deceased visited the police
Station to inquire about the deceased. The officers directed the relatives
to go to Sassoon Hospital, where they identified the deceased. It was
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informed by the relatives that they had received a phone call that the
deceased had damaged a motor vehicle and hence, in order to release him
Rs. 2000/- were demanded by the caller. The phone number from which
the said call was received was traced by the police to be that of the co-
accused and subsequently the two accused came to be apprehended.
It is alleged by the prosecution that on the day of the incident i.e.
17.03.2017 at around 8.30 pm the accused were going towards a market
on motor cycle when the deceased crossed the road due to which both
the accused fell down, causing damage to their motor cycle. The accused
demanded compensation from the deceased which was refused by him,
which led to a quarrel between the accused and the deceased. It is the
case of the prosecution that Accused no. 1 and the Applicant in
connivance forced the deceased to get on their motor cycle and took him
to the open space of Vanshiv Vasti. Accused No. 1 called relative of the
deceased from his mobile phone and demanded Rs. 2,000/-. The
prosecution alleges that since the amount was not received, the accused
tied the neck of the deceased with a rope and assaulted him with a stone
on his head, mutilating his face and killing him on the spot.
4. During the course of investigation, statements of witnesses were
recorded, various panchnamas were drawn, the dead body was forwarded
for post mortem, CDRs were obtained, voice samples were obtained,
memorandum of recovery was drawn. The Applicant was arrested on the
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same day i.e. 18.03.2017. Investigation was concluded, chargesheet was
filed. Case was committed to the Sessions Court. The Applicant pleaded
not guilty and claimed to be tried. The prosecution examined 39
witnesses. No defence witnesses were examined by the Applicant. The
defence of the Applicant was that of total denial and false implication.
5. On behalf of the Applicant it was contended that there are no eye
witnesses in the present case. It was also submitted that, there was no
recovery as against the Applicant. It was further submitted that PW No. 5
who was a panch witness in the memorandum panchnama where the
Applicant showed the spot of incident wrongly identified the Applicant in
Court and therefore, his identification of the Applicant does not inspire
confidence. It was also submitted that the Applicant has not made any
calls to the PW No. 19 and 20 i.e. the relatives of the deceased
6. Learned APP Ms. Shinde, countered the aforesaid submissions by
submitting that the death is proved to be homicidal. There is
circumstantial evidence against the Applicant and the offence is grave in
nature.
7. Appreciating rival submissions, following facts emerge. It is not in
dispute that there is no eye witness to the incident. Thus, the entire
substratum of the prosecution case rests only on circumstantial evidence.
The alleged phone call made for extortion of monies from the relatives of
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the deceased was not at the instance of the Applicant even as per the case
of the prosecution. The only incriminating material against the Applicant
is that the bottle of liquor which was found at the scene of offence was
purchased by the Applicant from a liquor shop and the prosecution has
relied on CCTV footage to show the same. Prima facie, we find that
there is no evidence on record to fix the Applicant at the place of the
offence around the time zone that the alleged murder has been
committed.
8. In the wake of the aforesaid discussion, this is a fit case for
suspension of sentence and grant of bail pending the Appeal. Hence, the
following order.
:ORDER:
i) The sentence imposed by the learned Additional Sessions
Judge, Pune vide his judgment and order dated 27.06.2025,
in Sessions Case No. 515 of 2017 is suspended during the
pendency of the Appeal.
ii) The Applicant be released on bail on executing PR bond in
the sum of Rs.10,000/- (Ten Thousand only) with one local
surety in the like amount to the satisfaction of the learned
Trial Court.
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iii) The Applicant shall not leave the State of Maharashtra
without prior permission of this Court.
iv) The Applicant shall inform the Trial Court of his contact
details and residential address alongwith changes therein, if
any.
v) The Applicant shall attend the Trial Court on such of the
dates as directed by it to mark his presence.
vi) Infraction of any of the aforesaid conditions would entitle
the State to move for cancellation of bail.
Interim Application No. 2563 of 2026 is disposed of in the
aforesaid terms.
ASHISH S. CHAVAN, J. BHARATI DANGRE, J.
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