10. appa 1042-09.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1042 OF 2009 IN CRIMINAL APPEAL NO. 969 OF 2009 Manoj Motiram Avale .. Applicant Vs The State of Maharashtra .. Respondent Mr. V.V. Purwant for the Applicant Mr. D.P. Adsule, APP for the State CORAM : P.V. HARDAS & N. D. DESHPANDE, JJ. DATE : 7th MARCH, 2011. PER COURT: 1. By this application, the applicant - original accused no. 1 seeks suspension of sentence of imprisonment and his enlargement on bail during pendency of appeal. Admittedly, the applicant was not on bail during the trial. 2. The case of the prosecution revolves around the evidence of an eye witness PW 1 Vijay. The prosecution has also relied upon recovery of blood stained clothes and chopper at the behest of the applicant accused as well as recovery of nylon bag, identity card of the deceased at the behest of the applicant. 3. The learned Counsel for the applicant has urged before us that in the light of the infirmities which are pointed out in the 1 10. appa 1042-09.doc evidence of PW 1 Vijay, PW1 Vijay cannot be said to be an eye witness and the trial Court erred in placing implicit reliance on the evidence of PW 1 Vijay. The learned Counsel for the applicant has further urged that the Panch witness in respect of panchnama of seizure of clothes, chopper as well as the nylon bag has not been examined by the prosecution and therefore, it cannot be said that the prosecution has proved recovery of aforesaid articles. The learned Additional Public Prosecutor has urged before us for dismissal of the present application on the ground that the submissions urged before us by the learned Counsel for the applicant pertain to re-appreciation of evidence which cannot be done at this stage. 4. We have carefully examined the submissions advanced before us by the learned Counsel for the applicant and we find that the aforesaid submissions are in the realm of re-appreciation of evidence which cannot be done at this stage. Suffice it to state that the learned trial Court, despite the infirmities, has found PW 1 to be a reliable witness. Similarly, the trial Court had accepted the evidence in support of seizure of clothes and chopper and a nylon bag. In such circumstances we are not inclined to suspend the substantive sentence of imprisonment and enlarge the applicant on bail. Additionally, we find that the applicant was not on bail during the trial. 5. The learned Counsel for the applicant states that the applicant may be permitted to file private paper book. We see no reason 2 10. appa 1042-09.doc not to accede to the request of the learned Counsel for the applicant and accordingly, permit the applicant to file private paper book within eight weeks from today. Application is accordingly rejected with leave as stated above. [ N. D. DESHPANDE, J ] [ P.V. HARDAS, J ] 3 10. appa 1042-09.doc 4