1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2403 OF 2009 IN CRIMINAL APPEAL NO.332 OF 2009 Ginaji @ Gyandeo Haribhau Bhalerao and others ... APPLICANTS VERSUS The State of Maharashtra ... RESPONDENT ----- Shri S.S. Bora, Advocate for the applicants Shri S.D. Kaldate, A.P.P. for the respondent ----- CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 16th September, 2009. Date of reserving for order : 14.9.2009 Date of pronouncing order : 16.9.2009 ORAL ORDER (PER DAVARE, J.): 1. Perused. 2. By the present application, the applicant Nos.1 to 3 2 i.e. accused Nos.1, 2 and 7 have requested for suspension of substantive sentence and for enlargement on bail during the pendency of the appeal filed by them, challenging the conviction inflicted upon them by learned Additional Sessions Judge, Gangakhed under Sections 148 and 302 read with Section 149 of the Indian Penal Code in Sessions Case No.18/1998 on 29.6.2009 and sentencing them for imprisonment for life and R.I. for three months respectively. The applicant/ accused No.2 has also preferred the present application on medical grounds, contending that he is suffering from HIV positive. 3. The factual matrix as recited in the F.I.R., which has been lodged by the complainant Vishwanath Manik i.e. P.W.4 are that, there were earlier litigations between the complainant party and accused persons as well as there were disputes between them on account of Grampanchayat elections. On the said background, on 7.11.1995 at about 10.00 p.m. accused No.3 Hussain Pahelwan came to the house of complainant’s brother namely Amruta and informed him that he was called by accused No.9 namely Bhaskar Limbaji Jadhav and accused No.1 Ginaji Bhalerao. Accordingly, they took victim Amruta with them. According to the complainant, his brother Amruta and said Hussain went in front of open place of the temple where accused No.1 Ginaji, accused No.3 Hussain, accused No.2 Amruta and accused No.7 Rama were present and they threatened deceased 3 Amruta saying that he has become arrogant and thereupon victim Amruta was apprehended and he left the said place towards right direction. The complainant also went to Gadhi of his uncle namely Gangadhar and witnessed the incident and saw that his brother Amruta was assaulted by accused No.7 Rama by Katti, accused No.1 Ginaji by axe, accused No.2 Amruta by way of iron rod and accused No.3 Hussain by axe and thereby the victim Amruta sustained injuries on his neck and on over all body and died on the spot. 4. Heard learned respective counsel for the parties. 5. The learned counsel for the applicants canvassed that the prosecution has examined the interested witnesses and although independent witnesses were available, they were not examined. It is further submitted that, though P.W.4 Vishwanath and P.W.5 Satyabhama have been examined as eye witnesses, their testimonies can not be construed as trustworthy since they are hit by contradictions and omissions and their testimonies are unnatural and unbelievable. Moreover, it is further submitted that, the conduct of both the said witnesses appear to be highly unnatural, as well as the evidence adduced and produced by the prosecution is inconsistent and unreliable to establish the nexus between the applicants and the alleged crime since there are several loop-holes, infirmities and discrepancies. Learned 4 counsel for the applicants also submitted that there is unexplained delay in lodging the F.I.R. which is also fatal blow the prosecution. 6. The learned counsel for the applicants also submitted that the learned trial Judge has not appreciated the evidence of alleged eye witnesses P.W.4 Vishwanath and P.W.5 Satyabhama in proper perspective since the perusal of the evidence of both the said witnesses shows that they were not eye witnesses of the incident. It is further submitted that there is nothing incriminating against the applicants herein. The learned counsel for the applicants further submitted that the applicants were on bail during the pendency of the appeal for about 14 years and, therefore, prayed that they be enlarged on bail during the pendency of the appeal also. 7. As regards applicant/ accused No.2 Amruta Jadhav, the learned counsel submitted that accused No.2 Amruta Jadhav has been suffering from HIV positive since 2005 and it is expedient that he be given the necessary medical treatment regularly and punctually which can be done if he is released on bail. It is also submitted that, keeping accused No.2 Amruta in jail is also hazardous to the other inmates in jail and, therefore, it is submitted that accused No.2 Amruta be enlarged on bail on the said very ground and also on the merits. 5 8. Shri Kaldate, learned A.P.P. vehemently opposed the present application and submitted that the victim Amruta sustained 14 injuries, out of which, 10 injuries were incised wounds which were serious and ocular evidence and medical evidence corroborate with each other and, therefore, submitted that the learned trial Court has rightly convicted and sentenced the applicants/ accused and, therefore, it is not desirable to enlarge them on bail. It is further submitted that the discovery of weapons was effected at the instance of the accused persons and although no blood stains were found thereon, the said evidence of discovery of weapons itself is incriminating against the applicants herein. As regards delay in lodging F.I.R., Shri Kaldate, learned A.P.P. submitted that delay has been properly explained by the prosecution and it is not fatal to the case of the prosecution. It is further submitted by learned A.P.P. that there is threat perception and danger to the life of the complainant if the applicants are released on bail and, therefore also it is not desirable to enlarge the applicants on bail. 9. We have perused the record and proceedings which was made available for the inspection and perusal purpose. We have also perused the oral and documentary evidence as well as medical evidence on record. It is seen from the evidence that the prosecution has examined inasmuch as 15 witnesses to substantiate the charges levelled against the accused persons. In 6 all 8 accused persons were charged and tried in Sessions Case No.18/1998 under Sections 302, 147, 148 read with Section 149 of the Indian Penal Code since accused Nos.3 and 6 were dead and case against them was abated, out of which the present applicants i.e. accused Nos.1, 2 and 7 were convicted and sentenced as aforesaid. Considering the eye witness account i.e. the testimonies of P.W.4 Vishwanath and P.W.5 Satyabhama and more particularly the evidence of discovery of weapons at the instance of the applicants and the injuries sustained by the victim Amruta, i.e. in all 14 injuries, out of which 10 injuries are incised wounds of serious nature, apparently, there are strong circumstances against applicants. Moreover, it appears that the ocular evidence and medical evidence are in consonance with each other. Hence, we are of the considered view that, prima facie, there is evidence against the applicants/ accused persons. So also, sight cannot be lost of the very aspect that the prosecution has posed apprehension and threat perception to the complainant if the applicants are released on bail. 10. As regards the medical ground in respect of accused No.2 i.e. Amruta Jadhav, we have called the medical report, and the Superintendent, Central Jail, Aurangabad produced the copies of medical case papers as well as the medical report of accused No.2 Amruta Jadhav, which disclose that the applicant No.2 Amruta Jadhav is suffering from HIV positive. However, it is 7 seen from the said report and papers that he is being given necessary free medical treatment in Government hospital regularly and punctually, as well as he is being given healthy food under the supervision of expert doctors and, therefore, we feel that proper care of accused No.2 is being taken in Jail, and hence, there is no necessity to release the applicant No.2 on bail on medical ground also. 11. Having the comprehensive view of the matter and after giving the anxious consideration to the submissions advanced by learned counsel for the parties, we are of the considered view that this is not a fit case to enlarge the applicants/ accused persons on bail and hence, present application deserves to be rejected and same stands rejected accordingly. 12. Record and proceedings be sent back to the trial Court immediately. [ SHRIHARI P. DAVARE, J.] [ NARESH H. PATIL, J.] fmp/cri2403.09