1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2255 OF 2010 RAMU KUSHA JADHAV VERSUS STATE OF MAHARASHTRA ... Shri Avinash Borulkar, Advocate (amicus curiae) for applicant and Shri N.R.Shaikh, APP for Respondent/State. ... CORAM : S.B.DESHMUKH & S.S.SHINDE,JJ. Dated : 12.8.2010 PER COURT :- 1. Heard respective counsel. 2. Applicant and one another - Baban Jadhav were tried for the offences punishable under sections 302, 504 read with 34 of Indian Penal Code in Sessions Case No.55 of 2009. The learned trial Judge, after considering the evidence adduced by the prosecution, acquitted original accused No.2 Baban for the offence punishable under section 302 read with section 34 of IPC. However, he was convicted for the offence under section 323 of IPC and sentenced to suffer rigorous imprisonment for thirty days. Both the accused were acquitted for the offence punishable under section 504 read with 34 of IPC. What is significant and relevant for this application is that the applicant / original accused No.1 has been convicted and sentenced for the offence punishable under section 302 of 2 IPC and directed to suffer imprisonment for life. This judgment and order is dated 20.3.2010. The applicant has filed Criminal Appeal No.180 of 2010 against the said judgment in this Court, which has been admitted. 3. According to prosecution, first information report has been lodged by PW 1 Gopinath. He is uncle of deceased Harischandra. The incident occurred on 25.1.2009 at about 1800 Hrs. in the vicinity of village Aurangpur-Kukada. According to prosecution one Vikram Jadhav, Contractor had brought around twelve families for labour work and they were camping at the said village. They were brought for manufacturing coal in the field of one Ashok Kulkarni. Said land was a fallow land and there were Babhool and other thorny trees. The complainant was residing in the small hut along with his wife PW 3 Laxmibai. Deceased was staying alone near the hut of Gopinath in a separate hut. He used to take meals with the complainant and Laxmibai. The incident took place on Sunday i.e. holiday from work to complainant, deceased and other families. After returning from the weekly bazar, deceased had been to the hut of Gopinath and disclosed demand by the accused persons of Rs.50/- for consumption of liquor. Both of them i.e. Gopinath and Laxmibai even offered Rs.50/- by way of hand loan to deceased if he does not have money to give two accused, including the applicant. Deceased, however, did not pay the said amount. As per the prosecution case, both accused, annoyed by this refusal, had assaulted deceased at around 1800 Hrs. on the day of the occurrence. Death of Harischandra allegedly was 3 on the spot and immediately after the assault by the accused persons. 4. Shri Borulkar, learned Advocate (amicus curiae) for the applicant took us through the entire material brought on record. With his assistance, we have seen the evidence of PW 1 Gopinath and PW 3 Laxmibai. According to counsel for applicant, these two witnesses cannot be said to be an eye witnesses. He submitted that evidence of these two witnesses cannot be said to be evidence of eye witnesses in the first place and secondly, they are closely related to deceased Harischandra. According to him, report of Serologist has been placed on record. Though the applicant was not on bail during the trial, learned counsel for the applicant seeks his release on bail. 5. Shri Shaikh, learned APP submits that presence of PW 1 Gopinath and PW 3 Laxmibai on the spot at the relevant time is natural. Evidence of PW 3 Laxmibai needs to be considered as an evidence of the eye witness. Referring to evidence of PW 1 Gopinath, learned APP further submits that the hut of Gopinath is at the distance of 25 feet away from the place of occurrence. According to him, presence of PW 1 Gopinath and PW 3 Laxmibai so also their status as an eye witnesses cannot be commented upon at this stage. He has also invited our attention to the observations of the trial court as regard the evidence of these two witnesses. He took us to paragraph No.48 of the judgment, wherein the trial Court has discussed the evidence of the Medical Officer. 4 6. We have given due consideration to the submissions of the respective parties. At this stage, it is not possible for us to accede to the submission of learned counsel for the applicant, since it pertains to the appreciation of evidence of PW 1 Gopinath and PW 3 Laxmibai. We have considered the role attributed to the applicant by these two witnesses. We have taken into account the organ chosen by the accused for assault. Three blows have been claimed by PW 3 Laxmibai. One of the blows, allegedly given by the applicant is on forehead of deceased, another on arm and third one on the neck. Weapon alleged to have been used by the applicant is also considered by us. In our view, considering the material brought on record, at this stage, it is not possible to accept the submission of learned counsel for the applicant for suspension of sentence and grant of bail to the applicant. 7. In the result, application stands rejected. We quantify Rs.1500/- (Rs.One Thousand Five Hundred only/-) towards fees and expenses to be paid to learned Advocate (amicus curiae) for the applicant, for this application only. At the time of final hearing and disposal of the main Appeal we may consider payment of fees for hearing of the appeal itself. (S.S.SHINDE,J.) (S.B.DESHMUKH,J.) ... akl