1 cri.appln.1225-10 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1225 of 2010 IN CRIMINAL APPEAL NO.319 OF 2008 Rakesh Ramnarayan Mishra ...Applicant Vs. The State of Maharashtra ...Respondent Mr. K.S. Patil, for the Applicant. Mr. H.J. Dedhia, APP for State. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. DATED: 15th March, 2011 P.C. We have heard Mr. Patil, the learned Counsel for the applicant, who was accused No.3 in Sessions Case No.431 of 2007. In the said case he has been convicted and sentenced for the offence punishable under Section 302 read with Section 34 of I.P.C. along with accused Nos. 1 and 2. 2. Accused No.1 Shri Rajesh Harinarayan Mishra has been released on bail by us as per the order dated 14th September, 2009 passed in Criminal Application No.969 of 2009. By this application the applicant prays for 2 cri.appln.1225-10 being released on bail during the pendency of Criminal Appeal No.319 of 2008. 3. As per the prosecution case deceased Santosh Kamlesh Goswami who was known to the accused was assaulted with sharp weapon around 9.30 p.m. on 13th March, 2007 and he was rushed immediately to the K.E.M. Hospital by one Nilesh Teli and others. However, while he was taken on the operation table he succumbed to the injuries around midnight. PW.6-Dr.Dhiren Shantilal Balsara who conducted the autopsy confirmed that Santosh died a homicidal death on account of the injuries sustained by sharp edged weapon. The prosecution examined in all 9 witnesses and claimed P.W.5-Ramkrishna Vasant Bhandari as the eye witness. Shri Patil pointed out that P.W.5-Ramkrishna Bhandari was an unreliable witness in as much as his statement was recorded by the police for the first time on 8th April, 2007 and Nilesh Teli who had accompanied the victim to the K.E.M. Hospital was not examined. 4. As per the prosecution P.W.2-Ajay Durgesh Bhandari was the witness to whom the dying declaration by the deceased Santosh was made. We have perused the oral depositions of P.W.2-Ajay Bhandari, P.W-4- Sachin Krushna Koitharkar, P.W.5-Ramkrishna Vasant Bhandari, P.W.6- Dr.Dhiren Shantilal Balsara and P.W.7-Dr.P.M. Rupganesh. P.W.7 was the 3 cri.appln.1225-10 doctor who had attended to the victim when he was brought to the K.E.M. Hospital. 5. On consideration of this evidence, prima facie we are satisfied that the applicant cannot be released on bail by suspending the order of sentence under Section 389 of Cr.P.C. and his case cannot be compared with the case of accused No.1. 6. Hence the application is rejected. However, the applicant is at liberty to apply for fixing early date of hearing in Criminal Appeal No.319 of 2008 as and when the paper book is ready. (U.D.SALVI, J.) (B. H. MARLAPALLE, J.)