( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2602 OF 2010 IN CRIMINAL APPEAL NO. 255 OF 2010 1. Namdeo s/o Waman Wajir 2. Gangaram s/o Waman Wajir 3. Satish s/o Bansi Umbare 4. Dyaneshwar alias Pintu s/o Baliram Dhepe 5. Nana alias Subhash s/o Appasaheb Umbare 6. Datta s/o Ankush Umbare 7. Rambhau s/o Vitthal Nimbalkar 8. Babasaheb s/o Bhimrao Phulge 9. Sunil s/o Ankush Umbare All r/o Phule Pimpalgaon, APPLICANTS/ Tq. Majalgaon, Dist. Beed. APPELLANTS VERSUS The State of Maharashtra, through Police Station Officer, Police Station, Majalgaon, District Beed. RESPONDENT .... Smt. S.S. Jadhav, advocate holding for Mr. Amit Mukhedkar, advocate for the applicants. Smt. S.D. Shelke, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 3rd September, 2010] ( 2 ) PER COURT : 1. Heard. 2. The application is for suspension of the substantive sentence rendered in Special Case No. 9/2009. The applicants have been convicted for offences punishable under section 304 Part-II read with section 149 of the I.P. Code, under section 143 of the I.P. Code and under section 148 of the I.P. Code alongwith section 323 read with section 149 of the I.P. Code for various terms. 3. It appears prima facie that deceased Sadashiv was assaulted by applicants/appellants No. 6 and 9 at the relevant time by means of stones. It appears that the other appellants were members of the alleged unlawful assembly. They are said to be the assailants in the context of assault mounted on eye witnesses to the incident. The trial Court came to the conclusion that the alleged incident was sudden and caused at spur of moment without any pre-planning, pre-determination or pre-monition. It is for such a reason that instead of conviction under section 302, the conviction is awarded for offence under section 304 Part-II of the I.P. Code. The applicants No. 6 and 9 were denied bail during the course of ( 3 ) trial. The other applicants were granted bail and were enlarged on bail through the trial till the date of conviction. They have been roped in only as the members of the unlawful assembly which was formed with alleged common object to assault deceased Sadashiv and to eliminate him. Considering the fact that they have been sentenced only as the abettors being members of the unlawful assembly, it would be appropriate to suspend the substantive sentence awarded to them. 4. In the result, the application is partly allowed. The application to the extent of applicants No. 6 and 9 i.e. Datta and Sunil is rejected whereas the application of other applicants is granted. The substantive sentence awarded to the applicants No. 1 to 5, Nos. 7 and 8 shall remain suspended on the condition that they will furnish afresh bonds in sum of Rs. 25,000/- each with one solvent surety each and shall undertake to remain present as and when called. The bail bonds to be furnished in the trial Court. [V.R. KINGAONKAR] JUDGE NPJ/criapln2602-10 ( 4 )