1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION No. 3884/2009 IN CRIMINAL APPEAL NO. 489/2009 Nitesh Praksh Deshmukh and another ...Applicants. Versus The State of Maharashtra. ..Respondent. ........ Shri R.N. Dhorde, Advocate for Applicants. Shri K.G. Patil, A.P.P. for respondent. CORAM : P.V. HARDAS, J. A.V. NIRGUDE, J Date : 02/12/2009 PER COURT :- 1. The applicants stand convicted for offences punishable u/s 147, 149, 302 r/w section 149, 341 r/w section 149 of Indian Penal Code by the Sessions Judge, Parbhani by judgment dated 23-01-2009, in Sessions trial No. 19/2008. By this application, the applicants are seeking suspension of their 2 substantive sentence and their enlargement on bail pending decision of the appeal. 2. The conviction of the appellants principally rests upon solitary testimony of P.W. 18 Baban, who is said to be an eye witness. The trial court relied upon and accepted the testimony of the eye witness, and convicted, and sentenced the applicants, as aforesaid. 3. Shri R.N. Dhorde learned counsel, invited our attention to the evidence of P.W. 18 Baban. It is the contention of the learned counsel for the applicants that P.W. 18 Baban is a chance witness, and apart from fact that he is chance witness, cross examination of this witness reveals omissions and contradictions on the most vital aspect of prosecution case, which renders his testimony doubtful. It is also urged before us that this witness had maintained a stoic silence after arrival of the police, and had not disclosed incident to the police and reason advanced by him that he was frightened, is far-fetched. In this circumstance, therefore, it is urged before us that the conviction is unsustainable on the basis of the infirm testimony of the solitary witness P.W. 18 Baban. The learned A.P.P. has urged for dismissal of this application. 3 4. With the assistance of learned counsel for the applicants, we have perused the testimony of P.W. 18 Baban from record and proceedings, which were called for by this Court. The submissions advanced before us by learned counsel for applicants pertains to appreciation of evidence, which can not be done at this stage. The question, whether reliance can be placed on the solitary testimony of P.W. 18 Baban, is a matter, which can be only decided at the time of final hearing of the appeal. Prima facie, we find that the conviction is based upon the testimony of eye witness, who had identified present applicants. In that light of the matter, therefore, we are not inclined to allow this application. Accordingly, this application is dismissed. We however, grant liberty to the applicants to apply for early hearing by fixed date after paper book is received from the trial Court. Application stands dismissed, with the aforesaid liberty. [A.V. NIRGUDE, J] [P.V. HARDAS, J] tsk/criapln3884.09 4