{1} Cri.W.P.No.2447/2011+1 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2447 OF 2011 WITH CRIMINAL APPLICATION NO.3008 OF 2011 XXXX CRIMINAL APPLICATION NO.2447 OF 2011 IN CRIMINAL APPEAL NO.285 OF 2011 Manik s/o Ahelaji Mote & Another APPLICANTS VERSUS The State of Maharashtra RESPONDENT WITH CRIMINAL APPLICATION NO.3008 OF 2011 IN CRIMINAL APPEAL NO.378 OF 2011 Samadhan Ramdas Mote & Others APPLICANTS VERSUS The State of Maharashtra RESPONDENT ....... Mr.N.S.Ghanekar, Advocate for the applicants Mr.N.R.Shaikh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] {2} Cri.W.P.No.2447/2011+1 DATE : 20 th July 2011 PER COURT: 1. The applicants in both these applications stand convicted for an offence punishable u/s 302 of the Indian Penal Code and original accused No.1 stands further convicted for an offence punishable u/s 498A of the Indian Penal Code. Allegations against the applicants are that on 06.08.2009, at about 5 to 5.30 p.m. the applicants in Criminal Application No.3008/2011 caught Hirabai and threw her in a well. When PW-1 Meerabai tried to go towards the well, to help Hirabai, who had been thrown in the well, applicants in Criminal Application No.2447/2011 i.e. Manik and Ashok caught her hands and thereby restrained her from proceeding towards the well. Trial Court, upon appreciating the evidence, convicted and sentenced these applicants accordingly. Since both these applications arise from the same judgment of the trial court, these applications are being decided by this common order. 2. Mr.Ghanekar, learned counsel for the applicants, has urged before us that assuming that applicants Manik and Ashok had caught hands of Meerabai, yet an inference cannot be drawn that these applicants shared common intention of the other accused in committing murder of Hirabai. It is further asserted before us by learned counsel for the applicants that presence of applicants Manik and Ashok prior to throwing of Hirabi in the well {3} Cri.W.P.No.2447/2011+1 has not been referred by the two eye witnesses. It is also urged before us that both Manik and Ashok were on bail during the trial and there are no allegations that they had misused the discretion exercised in their favour by the Court in releasing them on bail. Learned APP has urged before us for dismissal of both the applications on the ground that strong prima facie case exists against the present applicants. 3. The two eyewitnesses have clearly stated that accused Samadhan, Parvatabai and Chandrabhan, along with the absconding accused, had throw deceased Hirabai in the well. The eyewitnesses have further deposed that Manik and Ashok caught the hands of Meerabai and, therefore, prevented her from going towards the well. The question whether Manik and Ashok had shared the common intention of the other accused and the question whether their presence is referred by the other eyewitnesses and the fact of not referring their presence are the questions, which cannot be addressed at the present stage. Suffice it to state that strong prima facie case exists in respect of the applicants. However, we find that accused Parvatabai is said to be aged 65 years and though she was not on bail during the trial, we are inclined to suspend the substantive sentence passed against her and release her on bail, pending the decision of this appeal. 4. Accordingly, Criminal Application No.2447/2011 is dismissed, while Criminal Application No.3008/2011 is partly {4} Cri.W.P.No.2447/2011+1 allowed. Criminal Application No.3008/2011 stands dismissed in respect of the plea by Samadhan and Chandrabhan for suspension of their substantive sentence and is partly allowed in respect of the plea of Parvatabai for suspending her substantive sentence and releasing her on bail. We accordingly direct that applicant Parvatabai be released on bail on her furnishing PR bond in the sum of Rs.20,000/- and one surety in the like amount to the satisfaction of the trial court. We further direct the Registry to ensure that paper book is prepared expeditiously i.e. within 3 weeks from today and the appeal be set down for hearing upon receipt of the paper book. 5. Criminal Application No.2447/2011 is dismissed while Criminal Application No.3008/2011 is partly allowed as indicated above. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapln2447-11