1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRI. APPLICATION (APPA) NO.446 OF 2011 IN CRI. APPEAL NO.220 OF 2011 (Vitthal s/o Dagdu Pawar ..vs.. The State of Maharashtra) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.M. Patil Mane, Advocate for the applicant, Smt. B.P. Maldhure, A.P.P. for the respondent-State. CORAM : MRS. V.K. TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATE : 01-08- 2011 . The applicant is in prison from 26th November, 2009 following his arrest for murder of Purnabai allegedly committed by the applicant. The applicant was tried by the learned Additional Sessions Judge, Pusad in Sessions Trial No.67 of 2009. He has been convicted for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life and to pay a fine of Rs.2000/-, in default to suffer rigorous imprisonment for a period of one year. The present appeal is preferred against the said judgment and order. 2. By this application, the applicant seeks bail and suspension of substantive sentence imposed on him by the learned trial Court. The learned Counsel Shri Patil is heard on behalf of the applicant and learned A.P.P. Smt. Maldhure is heard on behalf of the respondent-State. It is submitted by Shri Patil Mane that most of the important witnesses are 2 hostile. It is further submitted that witness No.3-Vithal Rathod, who is the prime witness of the case, has also turned hostile. It is submitted by Shri Patil that the only piece of evidence on the basis of which the learned trial Court has convicted the applicant is the testimony of P.W.3 that he had seen the applicant and the deceased together in the afternoon of 15th April, 2004. The alleged incident had occurred in night of 15th April, 2004. The dead body was found lying in front of house of the applicant. It is submitted by Shri Patil that the period between the time of P.W.3 having seen the deceased and the applicant and the time of alleged incident is too wide to be explained by the applicant. It is further submitted that in view of the vast gap between the time when P.W.3 had seen the applicant and the deceased, it is not possible to reach to only one conclusion that it was the applicant who had committed murder of the deceased. The possibility of somebody else committing murder during the intervening period cannot be ruled out. It is submitted that since the case of prosecution is based on very weak piece of evidence, the applicant is entitled for liberty during the pendency of the appeal. 3. We have gone through the evidence of P.W.3 and other witnesses. We have also heard the learned Additional Public Prosecutor Smt. Maldhure. After having gone through the evidence of P.W.3 and other witnesses, we have come to the conclusion that it will have to be examined as to whether the prosecution can succeed only with help of provisions of Section 106 of the Evidence Act. We are, therefore, of the view that the applicant is entitled for bail during the pendency of appeal. Hence, we pass the following order. 3 i) The applicant be released on bail on executing P.R. Bond in the sum of Rs.60,000/- with one solvent surety in the like amount (with solvency certificate issued by the competent revenue authority). ii) The applicant shall not leave the Grampanchayat/ Municipal limits of Pimpalgaon without prior permission of this Court until further orders. iii) The applicant shall attend to Pusad Rural Police Station on every alternate day from the date of his release from the prison. iv) Substantive sentence stands suspended during the pendency of appeal. The application stands disposed of. ` JUDGE JUDGE pma