spb/- 1 apln287-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 287 OF 2011 IN CRI. APPEAL NO. 891 OF 2010 Vijay Babsaheb Nanavare ... Applicant. (Org.Accused). V/s. The State of Maharashtra ... Respondent. --- Mr. Z.M. Avhad for the Petitioner. Mr. Y.S.Shide, APP for the State. ----- CORAM : P. V. HARDAS & M.N.GILANI,JJ. DATE : 18TH APRIL, 2011. PC: 1 This is an application by which the Applicant/Appellant seeks suspension of the substantive sentences of imprisonment and his enlargement on bail in respect of the conviction for the offence punishable under sections 376 and 302 of the Indian Penal Code. 2 The applicant is alleged to have raped and committed murder of deceased Swapna, who was 10 years old girl. The applicant committed this crime some time on 22.02.2006. The prosecution in order to establish the offence against the applicant-accused relied on the evidence of PW-5, PW-6 and PW-7 who were the witnesses, who had seen the deceased alive in the company of the applicant-accused. The prosecution also seeks to rely on the report of the chemical analyzer spb/- 2 apln287-11.sxw which indicates that the mud which was found on the bicycle, which was used by the accused to carry the victim, was the same mud which was found at the scene of the offence, in the mouth of the deceased girl and on the shirt of the accused. The prosecution also relied on the evidence of the other witnesses in support of its case against the applicant-accused. 3 The learned counsel for the applicant-accused has urged before us by referring to the evidence of PW-5, PW-6 and PW-7 that these witnesses had admitted that photographs of accused were seen by them prior to the identification parade, which came to be conducted subsequent to the arrest of the accused. On the basis of this it is, therefore, urged before us by the learned counsel for the applicant -accused that this identification parade is vitiated and no reliance upon it could be placed to establish that the these three witnesses had seen deceased in the company of the accused. It is also urged before us by the learned counsel for the applicant-accused that these witnesses are got up witnesses, who are made to depose. 4 The learned APP has urged for dismissal of the bail application. 5 With the assistance of the learned counsel for the parties, we have perused the evidence of PW-5, PW-6 and PW-7 who had seen the deceased alive in the company of the accused just before her death. Evidence of PW-6 and PW-7 clearly indicates that they had seen the accused and the victim together. The question whether the identification parade would be vitiated on account of photographs of the accused being seen by the witnesses is a question which cannot be decided at this stage. spb/- 3 apln287-11.sxw The aforesaid submission pertains to re-appreciation of evidence which cannot be done at this stage. Suffice it to state that the trial court has placed reliance on the evidence of these three witnesses as well on the report of the chemical analyzer and the other evidence to hold the accused guilty for the offence punishable under section 376 and 302 of the Indian Penal Code. The offences alleged against the accused are serious offence and in the light of what has been stated on oath by the prosecution witnesses, we are not inclined to suspend substantive sentence as prayed and enlarge the accused on the bail. In that light, therefore, this application is dismissed. [M.N.GILANI,J.] [P.V. HARDAS, J.]