1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2378/2011 IN CRIMINAL APPEAL NO.281/2011 Kishor s/o Raju Kamble, age 20 yrs, Occ. Agril, r/o Sathe Nagar, Jamkhed, Tq. Jamkhed, Dist Ahmednagar. Applicant [orig. accused.] V E R S U S The State of Maharashtra, through Police Station, Jamkhed, Tq. Jamkhed, Dist. Ahmednagar. Respondent. .................................................................. Mrs.Madhaveshwari Thube-Mhase Advocate for applicant. Mr.B.V.Wagh APP for the respondent. ................................................................... CORAM : SHRIHARI P. DAVARE, J. DATE : 28th JULY, 2011. 2 PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant [original accused], seeking bail, pending hearing and final disposal of Criminal Appeal No.281/2011, suspending the substantive sentence inflicted upon him, by way of judgment and order dated 13.4.2011. 3. It appears that applicant herein faced trial for the offence punishable under section 307, 326 of Indian Penal Code in Sessions Case No.100/2010, and he was convicted for the same by the judgment and order dated 13.4.2011 by learned Additional Sessions Judge, Ahmednagar and was sentenced to suffer R.I. for seven years and to pay fine of Rs.1,000/-, in default to suffer S.I. for six months for the offence punishable under section 307 of Indian Penal Code and although he was convicted for the offence punishable under section 326 of Indian Penal Code, no separate sentence was awarded to him, since he was sentenced for major 3 offence. Applicant herein challenged the said conviction and sentence by filing Criminal Appeal No.281/2011, which has been admitted by me by passing order therein separately on 21.6.2011. 3. Factual Matrix of the matter is that, on 10.2.2010 between 09.00 to 9.30 p.m. it is alleged that there was a quarrel between Manoj and applicant Kishor near Mauli Collection. Informant Nikhil and one Sonal Waghmare have settled the dispute. Thereafter, at about 10.00 to 10.30 p.m. on the same day at the request of Santosh, informant had been to take Santosh on the Bus stand alongwith Sonal Waghmare. They both and Santosh were coming from Bus stand towards Arole Vasti. They were stopped near Mauli Collection by the accused Kishor and one Vicky. When Santosh tried to intervene by saying as to why they are disputing amongst them, accused Kishor took out sword and assaulted Santosh. After stopping informant by the present applicant-accused and others, they also abused. Applicant also assaulted with sword on the face of Santosh and over the head and backside of palm of Sonal. The absconding accused Vicky and Vinod were holding 4 him. Applicant Kishor attempted to assault with sword on his face, but since he raised hand, he got blow of sword on his hand. One Sanju Virkar and Balu Mane took them to Government Hospital. The informant Nikhil, lodged the complaint on next day i.e. on 11.2.2010 Exh.16 and offence was registered against the applicant under Cr.No.39/2010. 4. On the aforesaid background of the factual conspectus learned counsel for the applicant canvassed that although alleged incident occurred on 10.2.2010 P.W.1 Nikhil i.e. first informant lodged the complaint on the next day on 11.2.2010, and there is delay of one day and prosecution has not explained said delay convincingly. Moreover, learned counsel for the applicant also canvassed that Sanju Veerkar and Balu Mane allegedly took the victim to the hospital were not examined by the prosecution for the reasons best known to it and said witnesses could have thrown much light on the occurrence of the incident and non examination of the said witnesses hampers the case of the prosecution. According to learned counsel for the applicant, there are vital 5 omissions and contradictions in the testimony of PW 1 Nikhil- complainant which go to the root of the matter and diminish the credibility of his testimony. 5. As regards, deposition of PW 2 another victim, namely Sonu, learned counsel submitted that although alleged incident occurred on 10.2.2010, he did not disclose said incident for about four days i.e. till 14.2.2010 which castes serious about his testimony. It is also canvassed that deposition of PW 2 Sonu suffers from the vital omissions and contradictions and therefore, his testimony is not believable and does not connect the applicant with the alleged crime. As regards testimony of Santosh-third victim in the occurrence of incident, learned counsel canvassed that he referred to weapon Kukri allegedly used in the occurrence of the incident and does not refer to the sword which was stated by the other two victims i.e. Nikhil and Sonu and accordingly, it is submitted that there are contradictions in the testimony of PW 1 Nikhil, PW 2 Sonu and PW 6 Santosh in respect of the very weapon allegedly used in the occurrence of the incident. Learned counsel for the 6 applicant asserted that PW 6 Santosh does not disclose incident till 22.2.2010 i.e. for about 12 days and therefore, said testimony comes under the cloud of suspicion. It is further submitted that there are also vital omissions and contradictions in the deposition of PW 6 Santosh and therefore, said testimony also cannot be construed as trust worthy testimony. 6. Learned counsel for the applicant further argued that substantive sentence awarded to the applicant is for the period of seven years, which is a short term sentence, placing reliance upon the judicial pronouncement of Honourable Supreme Court in the case of Kiran Kumar V/s. State of M.P. reported at 2001 A.I.R. S.C.W. 5130. It is also canvassed that appeal filed by the applicant has been admitted and there is no likely hood that said appeal be taken up for final hearing in near future and hence learned counsel for the applicant urged that applicant be released on bail, during the penency of criminal appeal No.281/2011. 7 7. Learned APP countered said argument and opposed present application vehemently and submitted that prosecution has examined as many as ten witnesses to substantiate the charges levelled against the applicant herein and out of the said witnesses, three witnesses are the victim i.e injured who sustained injuries during the occurrence of the incident at the hands of the applicant herein. Learned APP submitted that as regards alleged omissions and contradictions in the testimony of PW 1 Nikhil, it is pertinent to note that said alleged omissions and contradictions were not confronted to the recorder i.e PW 9 Jadhav, and hence, said alleged omissions and contradictions have not been proved and therefore, said alleged omissions and contradictions will have no bearing upon the testimony of PW 1 Nikhil and hence testimony of PW 1 Nikhil, who is victim in the occurrence of the incident is required tobe believed and same is required to be accepted to connect the applicant to the crime and same has been done by the learned trial court and convicted and sentenced the applicant herein rightly. Thus, learned APP supported the impugned judgment and order convicting and sentencing the applicant for the aforesaid offences. 8 8. Learned APP also canvassed that the very dangerous weapon i.e. sword was recovered at the instance of applicant herein under the discovery panchnama under section 27 of the Indian Evidence Act, which is incriminating circumstance against the applicant herein. Moreover, it is also canvassed by the learned APP that medical evidence i.e. testimony of PW 8 Dr. Rajendra, who examined the victims has categorically stated that victims sustained grievous injuries, which were possible by the article sword and injury certificate issued by him and his testimony connects the applicant with the alleged crime. 9. As regards alleged non disclosure of the incident by Sonu till 14.2.2010, learned APP pointed out that learned trial judge has dealt with said aspect in paragraph No.16 of the judgment properly and submitted that said alleged delay does not diminish the credibility of the said witness. 10. Besides learned APP submitted that the applicant herein was not enlarged on bail during the pendency of the trial and 9 submitted that present case is distinguishable from the case of Kiran Kumar (supra) and urged that applicant is not entitled to be released on bail, and hence, present application be dismissed. 11. I have perused the impugned judgment and order dated 13.4.2011 and R & P with the assistance of learned counsel for the parties as well as heard submissions advanced by the learned counsel for the parties anxiously and it is material to note that prosecution has examined as many as ten witnesses out of which three are injured witnesses i.e. victims PW 1 Nikhil-complainant, PW 2 Sonu and PW 6 Santosh who have categorically stated the occurrence of the incident in their respective testimonies specifically involve the applicant herein, who assaulted them by deadly weapon i.e. sword which was discovered at the instance of the applicant under the memorandum of panchnama. Moreover, said ocular evidence of the very victims has been apparently supported by the medical evidence i.e. testimony of PW 8 Dr. Rajendra Hange and injury certificate Exh.34 and PW 8 Hange who examined said victims who has categorically stated that they 10 sustained grievous injuries which was possible by the article sword before the Court. Hence, apparently the ocular evidence and the medical evidence is in consonance with each other which is incriminating against the applicant herein. 12. Moreover, it is material to note that, the applicant was not on bail during the pendency of the trial and considering the facts and circumstances in the present case, present case is distinguishable from the case of Kiran Kumar (supra) dealt with by the Honourable Supreme Court and the observations laid down therein cannot be of any aid and assistance to the applicant. 13. In the circumstances, having comprehensive view of the matter, I am of the opinion that primafacie there is incriminating evidence against the applicant and hence, I am not inclined to enlarge the applicant on bail, during pendency of the appeal and therefore, present application deserves to be rejected. 11 14. In the result, present application stands dismissed. Record and Proceeding be sent back to the concerned court. [ SHRIHARI P. DAVARE ] JUDGE ... AAA/2378.11