1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO. 96 OF 2010 IN CRIMINAL APPEAL NO.11 OF 2010 Vithal s/o Gangaram Gamod ..APPLICANT VERSUS The State of Maharashtra ..RESPONDENT Mr H.I. Pathan, Advocate for the applicant; Mr S.D. Kaldate, A.P.P. for the respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 4th March, 2010 PER COURT : By this application the applicant seeks suspension of the substantive sentence of imprisonment for life and his enlargement on bail pending the decision of the appeal. It appears that the applicant stands convicted for an offence punishable under section 302 of the Indian Penal Code and stands sentenced to imprisonment for life on the allegations that the applicant had committed murder of deceased Rama on 23.4.2009 in the evening. 2 2. The main stake of the prosecution case revolves round the testimonies of P.W. 5 Kondiba and P.W.8 Baburao, who are said to be the eye-witnesses. Both the witnesses have been believed by the Trial Court. It is the contention of the eye-witnesses that the deceased was assaulted by the accused by means of a shoe on his head which resulted into injuries. The aforesaid evidence of the eye-witnesses stands amply corroborated by the testimony of P.W.10 Dr. Patil. According to the Medical Officer, deceased had sustained fracture of the 5th rib as well as fracture of skull and death is on account of the head injury. The Medical Officer also rules out the case of the defence that the deceased had sustained injuries on account of accidental fall from the auto-rickshaw. The Medical Officer has also ruled out the case of the defence that the said injuries were incapable to be caused by the shoe which was produced before the Medical Officer. 3. Mr Pathan, learned Counsel for the applicant has urged before us that the evidence of the two eye-witnesses examined by the prosecution cannot be relied upon as the evidence of these eye-witnesses itself tasks human credulity for their acceptance. It is urged before us that the Trial Court ought to have preferred the evidence of D.W.1 Bhaurao over the eye-witnesses examined by the prosecution. It is also urged before us that the shoe which was made of Rexin was incapable of causing fracture of the skull resulting in the death of the deceased. The aforesaid submissions, according to us, pertain to re-appreciation of evidence, 3 which cannot be done at this stage. Suffice it to say that the Trial Court has relied upon the testimonies of the two eye-witnesses and has found that the evidence of the two eye-witnesses stands amply corroborated by the evidence of the Medical Officer. The Medical Officer P.W.10 Dr. Patil has repelled the contention of the accused that the injuries sustained by the deceased would have been caused accidentally. In that light of the matter, therefore, we fee that prima facie there is evidence to justify the conviction of the appellant. Additionally we find that the applicant was not on bail during the trial. 4. For the aforesaid reasons there is no merit in the application and the application is dismissed. (SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/criap96.10