1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 878 OF 2009 IN CRIMINAL APPEAL NO. 139 OF 2009 (Mohd.Yunus Mohd.Yusuf and another .v. State of Maharashtra) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri R.M. Patwardhan, Advocate for the applicants. Shri S.S. Doifode, APP for the respondent. CORAM : A.P. LAVANDE AND PRASANNA B. VARALE, JJ. DATE OF RESERVING ORDER : 01ST JULY, 2009. DATE OF PRONOUNCING ORDER : 03RD JULY, 2009. Heard the learned Counsel appearing on behalf of the respective parties. This is an application moved by the applicants for suspension of sentence and grant of bail. The applicants are the original accused Nos.2 and 5 respectively in Sessions Trial No. 90/1997. The applicants were prosecuted along with the other accused persons for the offences punishable under Sections 302, 307, 324, 333, 34 of the Indian Penal Code. The learned 3rd Additional Sessions Judge, Amravati, by judgment and order dated 21.01.2009, convicted and 2 sentenced these accused persons. Criminal Appeal No. 139 of 2009 is preferred against the said judgment and order by the applicants and the same is admitted by this Court. Shri R.M. Patwardhan, the learned Counsel appearing on behalf of the applicants submitted that the incident in question was the result of the dispute over the property. He further submitted that the victim along with the police staff came to the spot and the quarrel took place. It is submitted by the learned Counsel for the applicants that as the victim and the other family members were the aggressors, the applicants had acted in exercise of right of private defence. Learned Counsel further submitted that insofar as the applicant No.2 is concerned, the role attributed to her is very limited. The applicant No.2 as alleged by the prosecution, made assault with the help of stone. He further submitted that the applicant No.2 cannot be said to be responsible for the death of the victim. As per the medical evidence, the death is not the result of injury caused by stone. He further submitted that being a lady, the prayer of the applicant No.2 be considered with leniency. The learned Counsel further submitted that in view of the pendency of old appeals, it is not likely that the appeal filed by the applicants would be taken up for final hearing in near future. He further submitted that the 3 family of the applicants is facing financial difficulties since there is no earning member in the family. Shri S.S. Doifode, the learned APP for the respondent vehemently opposed the application. We have considered the submissions made by the learned Counsel appearing on behalf of the respective parties. Perusal of the record shows that the witnesses namely PW-12 Aslam Shah Suleman Shah who is an injured witness, PW-13 Abdul Rakhim, PW-15 Firozuddin state about the presence of the applicants. These witnesses also state that the applicant No.1 Mohammad Yunus was armed with razor whereas the applicant No.2 Shahin Parveen was armed with bucket, assaulted Ayub Shah. The applicants were present along with the other accused persons who were armed with knife and sword. Witness Aslam Shah has also stated that the lady accused assaulted initially with the stone and thereafter they picked up bucket and started beating the b4rother of this witness i.e. Ayub Shah. The omissions brought by the defence were in respect of the injuries sustained by this witness. Abdul Rakhim and Firozuddin also speak about the fact that the applicant No.1 who was holding razor, assaulted Ayub Shah. He also states about the participation of applicant No.2 in the assault. PW-15 Firozuddin gives a detailed account of the incident. He has stated that the applicant No.1 4 inflicted razor blows on Ayub Shah. PW-16 Shankar Nimkar who is an independent witness and who has proceeded to the spot on the report of Ayub Shah for enquiry, along with the other police personnel deposed that when he reached the spot along with Ayub Shah, the accused persons started abusing and started attacking Ayub Shah and these police personnel. PW-16 deposed that the applicant who was armed with razor came on the spot and when the witness tried to stop him, the applicant No.2 gave him a stick blow. He also stated that the other accused persons who were armed with weapons like sword, stick, knife etc., assaulted Ayub Shah. There is medical evidence on the record. Prima facie, there is enough material to suggest the active participation of these applicants in the offence. That the merits of the will have to be considered at the time of hearing of the appeal. There is sufficient material to show the involvement of the applicants in the crime. In our opinion, this is not a case for suspension of sentence and for grant of bail as prayed for by the applicants. Mere pendency of appeal for some time or the financial condition of the applicants cannot be the ground for consideration of the prayer to release the applicants on bail or to show leniency as prayed by the learned Counsel for the applicants. 5 In the result, Criminal Application No. 878 of 2009 deserves to be rejected and the same is rejected accordingly. JUDGE JUDGE *rrg.