drp {1} Cri.Application No.3806 & 3976/10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3806 OF 2010 WITH CRIMINAL APPLICATION NO.3976 OF 2010 XXXXX CRIMINAL APPLICATION NO.3806 OF 2010 IN CRIMINAL APPEAL NO.363 OF 2010 Pramod s/o Kalu Kendale & Others APPLICANTS VERSUS The State of Maharashtra RESPONDENT WITH CRIMINAL APPLICATION NO.3976 OF 2010 IN CRIMINAL APPEAL NO.391 OF 2010 Sunil s/o Anna Hiwale APPLICANT VERSUS The State of Maharashtra RESPONDENT ....... Mr.R.N.Dhorde h/f Mr.V.R.Dhorde, Advocate for applicants Mr.B.V.Wagh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] drp {2} Cri.Application No.3806 & 3976/10 DATE : 8th December 2010 PER COURT: 1. Criminal Application No.3806/2010 has been filed by original accused No.1 Pramod, accused No.2, Sandeep, accused No.3 Ishwar, accused No.4, Nitin, accused No.5 Sachin, accused No.6 Potat, accused No.7 Rambhau, accused No.8 Appa, accused No.9 Pintu @ Anna, accused No.10 Baba, accused No.11 Sadashiv and accused No.16 Kisan. Criminal Application No.3976/2010 has been filed by original accused No.13 Sunil. 2. The aforesaid applications have been field by the applicants, who stand convicted for several offences including the offence punishable under section 302 of the Indian Penal Code and all the applicants are sentenced to imprisonment for life. The applicants are alleged to have committed murder of Dnyaneshwar and Vilas on 29.10.2007 at about 9.15 p.m. The entire prosecution case revolves round the evidence of PW-1 Narayan, PW-2 Rajendra, PW-3 Kailas and PW-4 Ganesh, the eye witnesses. The trial court has accepted the evidence of these four witnesses and has come to the conclusion that the prosecution has been able to establish the offence against the appellants, who stand convicted accordingly. 3. Shri.R.N.Dhorde, learned counsel for the applicants, in support of these applications seeking suspension of sentence and drp {3} Cri.Application No.3806 & 3976/10 enlargement of the applicants on bail, has urged before us that in the light of various infirmities in the evidence of the four eye witnesses coupled with the fact that there are interse variance in their evidence, no reliance could have been placed by the trial court on the evidence of these witnesses for sustaining the conviction of the applicants. It is also urged before us that the evidence of these eye witnesses does not establish the offence against these applicants, beyond reasonable doubt. Learned counsel for the applicants has taken us through the evidence of the eye witnesses. It is urged before us that original accused No.13, Sunil, and accused No.16 Kisan, have not been named in the First Information Report. PW-1 Narayan, in his evidence, states that accused No.13 Sunil had assaulted him with sword and stick. During the investigation what is recovered is an axe. PW-2 Rajendra states in his evidence that accused No.13 Sunil had also assaulted him with stick on his legs. PW-3 Kailas and PW-4 Ganesh do not attribute any overt act to accused No.13. 4. There appears to be variance in the evidence of these witnesses in respect of accused No.13 Sunil. First and foremost, he is not named in the First Information Report and the evidence of PW-1 Narayan and PW-2 Rajendra in respect of the overt act is not complementary to each other. PW-3 Kailas and PW-4 Ganesh do not even attribute any overt act to accused No.13 Sunil in their evidence. In the light of the aforesaid circumstance, therefore, according to us, accused No.13 Sunil would be entitled to be drp {4} Cri.Application No.3806 & 3976/10 released on bail by suspending the substantive sentence. 5. Similar is the case of accused No.16 Kisan. Accused No.16 Kisan is also not named in the First Information Report and PW-1 Narayan, PW-3 Kailas and PW-4 Ganesh do not attribute any overt act to accused No.16 Kisan in their evidence. PW-2 Rajendra only attributes assault by accused No.16 Kisan on him on his head and left hand by an iron rod. For the reasons we have stated in respect of release of accused No.13, Sunil on bail, we also find that accused No.16 Kisan is also entitled to be released on bail by suspending the substantive sentence. 6. Accused No.11 Sadashiv is neither attributed any overt act in the First Information Report nor PW-1 Narayan, PW-2 Rajendra, PW-3 Kailas and PW-4 Ganesh attribute any overt act to accused No.11 Sadashiv. In that light of the matter, therefore, we are inclined to allow his plea for suspending substantive sentence and his enlargement on bail. 7. Case of accused No.10 Baba is identical to the case of accused No.11 Sadashiv. No overt act is attributed by any of the eye witness to accused No.10 Baba. In that light of the matter, therefore, according to us, his plea for suspension of substantive sentence and enlargement on bail deserves to be considered. 8. Accused No.3 Ishwar is not attributed any overt act in drp {5} Cri.Application No.3806 & 3976/10 the First Information Report and PW-1 Narayan, the first informant, also does not attribute any overt act to him in his evidence. PW-3 Kailas and PW-4 Ganesh also do not attribute any overt act to accused No.13 Ishwar. PW-2 Rajendra attributes assault by stick on his leg by accused No.3 Ishwar. In the light of the interse variation in the evidence of these witnesses, prima facie, according to us, accused No.3 Ishwar also would be entitled to be released on bail. 9. We have minutely scrutinized the material available against accused No.1 Pramod, accused No.2 Sandeep, accused No. 4 Nitin, accused No.5 Sachin, accused No.6 Popat, accused No.7 Rambhau, accused No.8 Appa and accused No.9 Pintu @ Anna. Upon perusal of the proceedings of the trial court, it appears that these accused are named in the First Information Report and overt act, including possessing a particular weapon, is also attributed to them in the First Information Report. Evidence of the eye witnesses also discloses, prima facie, overt acts to these accused. In that light of the matter, therefore, according to us, the plea for suspension of sentence and their enlargement on bail, filed by accused No.1 Pramod, accused No.2 Sandeep, accused No.4 Nitin, accused No.5 Sachin, accused No.6 Popat, accused No.7 Rambhau, accused No.8 Appa and accused No.9 Pintu @ Anna, deserves to be rejected. 10. Accordingly, Criminal Application No.3976/2010 is drp {6} Cri.Application No.3806 & 3976/10 allowed and the substantive sentence of imprisonment awarded to accused No.13 Sunil Anna Hiwale stands suspended pending the decision of this appeal and accused No.13 Sunil is directed to be released on bail, on accused No.13 Sunil executing PR bond in the sum of Rs.25,000/- (Rupees Twenty Five Thousands only) with one surety in the like amount, to the satisfaction of the trial court. Original accused No.13 Sunil shall attend police station Nevasa once in three months on the first Sunday of the quarter, between 8.00 a.m. and 10.00 a.m. 11. Criminal application No.3806/2010 is partly allowed. Applicant original accused No.3 Ishwar Kalu Kendale, accused No. 10 Baba Balu Kendale, accused No.11 Sadashiv Mohan Lokhande, accused No.16 Kisan Bhagwan Kendale are directed to be released on bail by suspending their substantive sentence of imprisonment during the pendency of this appeal. These applicants shall execute PR bonds in the sum of Rs.25,000/- (Rupees Twenty Five Thousands) each, with surety in the like amount to the satisfaction of the trial court. These applicants shall attend police station Nevasa once in three months on first Sunday of the quarter between 8.00 a.m. and 10.00 a.m. Application in respect of other accused stands rejected. 12. However, in the light of the evidence of the eye witnesses, which we have adverted to above and the fact that the incident is of the year 2007, we direct the Registry to ensure that drp {7} Cri.Application No.3806 & 3976/10 the paper book is expeditiously prepared and to list this appeal for hearing as soon as the paper book is received from the trial court. The trial court to expedite the preparation of the paper book. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapln3806-10