1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1989/2009 ------------------------------------------------------ Ankush Shivaji Gaikwad .. PETITIONER VERSUS The State of Maharashtra .. RESPONDENTS .... Shri P.B.Patil,Adv. for petitioner . Shri N.N.Jadhav,A.P.P.for respondent State .... CORAM : P.V.HARDAS & R.K.DESHPANDE,JJ. DATE : 22/06/2009 ORAL ORDER : This is an application filed by the present applicant who is original accused no.1 in the trial seeking suspension of the substantive sentence of imprisonment and his enlargement on bail pending the decision of the appeal. It appears that the applicant alongwith others stands convicted for an offence punishable under Section 302 r.w. 34 of I.P.C. on the ground that the applicant and the other accused had committed murder of deceased Nilkanth on 3/2/06. It also appears from the evidence that Nilkanth was assaulted by iron rod on 3/2/06 2 and he succumbed to his injuries on 7/2/06. Appeal of the applicant and the other accused has been admitted and when application had been filed by present applicant seeking similar relief, the same came to be dismissed by the Division Bench in so far as it related to the applicant while allowing application of the other accused. The applicant being aggrieved by the said order of the Division Bench declining to suspend substantial sentence of imprisonment and to release him on bail filed Special Leave Petition before the Supreme Court. The order of the Supreme Court reads thus : Heard learned counsel for the petitioner. The special leave petition is dismissed. However, petitioner would be at liberty to move the High Court for grant of bail after six months which shall be decided by the High Court on its own merits in accordance with law.” 3. In the light of the liberty given by Supreme Court for filing present application, the present application has been filed. Shri P.B.Patil, learned counsel for applicant has urged before us that the prosecution evidence comprises of the testimony of P.W.1 Mangala wife of deceased Nilkanth and P.W.5 Ganpati cousin of deceased Nilkanth who are releated and partisan witnesses and as such the trial Court has erred in accepting and relying upon their testimony. It is urged before us that one Raju who was referred to as an eye witness 3 in the F.I.R. has not been examined. Similarly it is urged before us that the delay in lodging F.I.R. has not been explained and P.W.1 Mangala has admitted in her cross examination the possibility of the injury being sustained by Nilkanth on account of fall. 4. With the assistance of learned counsel for the parties, we have perused findings recorded by the trial Court. The trial Court has accepted and relied upon the testimony of P.W.1 Mangala and P.W.5 Ganpati who are eye witnesses to the incident. In so far as other grounds which are canvassed before us, all these grounds pertain to reappreciation of evidence, which cannot be done at this stage. Suffice it to say that prima facie there is material against the applicant accused connecting him with the commission of the offence. As to whether the offence would be one which would be punishable under Section 302 Part I or II of the I.P.C. is a matter which the Court would appraise itself at the time of final hearing. We are already hearing criminal appeals of the year 2007-08. In the light of that, therefore, we do not find any merit in the application and the same is dismissed. [R.K.DESHPANDE,J.] [P.V.HARDAS,J.] umg/criapln1989-09