1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.529 OF 2010 IN CRIMINAL APPEAL NO.55 OF 2010 Arjun Ramchandra Kamble ..APPLICANT VERSUS The State of Maharashtra ..RESPONDENT Mr Sandeep S. Deshmukh, Advocate for the applicant; Mrs A.V. Gondhalekar, A.P.P. for the respondent. CORAM : P.V. HARDAS AND N.D. DESHPANDE,JJ. DATE : 2nd July, 2010 PER COURT : The appellant/applicant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code, by the Additional Sessions Judge, Ahmednagar, by judgment dated 17.12.2009, in Sessions Case No.8 of 2007, by this application seeks suspension of the substantive sentence of imprisonment and his enlargement on bail pending the decision of the appeal. 2. The prosecution went to trial relying upon the evidence of P.W.3 Housabai, wife of deceased Barku and P.W.4 Rajendra, son of deceased Barku. According to the Trial Court, the evidence of these two eye- 2 witnesses clearly establishes that it was the applicant/accused who had inflicted an injury on the head of deceased Barku by an axe. The Trial Court relied upon the opinion of the Medical Officer examined to prove the injuries sustained by Barku and his death on account of sustaining the said injury. The Trial Court, therefore, came to the conclusion that the prosecution had established the offence against the applicant beyond reasonable doubt. 3. Mr Sandeep Deshmukh, learned Counsel for the applicant has urged before us that the prosecution has not been able to establish motive. It is also urged before us that admittedly the applicant and others had not gone to the house of deceased Barku armed with any weapon but during the course of verbal altercation between them, an axe is alleged to have been grabbed by the applicant in order to inflict injury to deceased Barku. It is faintly urged before us that in such circumstances, an offence punishable under section 302 of the Indian Penal Code would not be made out but an offence punishable under section 304 part - II of the Indian Penal Code would be made out. It is further urged before us that the Trial Court has partly disbelieved the evidence of the eye- witnesses in respect of the participation of the other accused and consequently the applicant/accused ought to have been given the benefit of doubt. It is candidly admitted before us by the learned Counsel for the applicant that the applicant was not on bail during trial. The learned A.P.P. urged before us that the Trial Court has come to the conclusion by 3 accepting the evidence of the two eye-witnesses and at this stage of examining whether the prosecution had made out prima facie case or not against the applicant to warrant the suspension of sentence and his enlargement on bail, the findings by the Trial Court are proved. The learned A.P.P., therefore, requests that the application be dismissed. 4. Failure of the prosecution to prove motive in cases where the prosecution relies upon the eye-witness evidence cannot be fatal in each and every case. Even otherwise, the Trial Court has found the evidence of the eye-witnesses to be reliable and has accepted the same. In such circumstances, according to us, failure of the prosecution to lead evidence and establish motive as a circumstance would pale into insignificance. Similarly, merely because the eye-witnesses have been disbelieved in part would not necessarily lead in the rejection of their testimonies in its entirety. In any event, the submissions advanced before us by the learned Counsel for the applicant pertain to re- appreciation of evidence, which cannot be done at this stage. Sufficie it to say that in the light of the evidence of the two eye-witnesses, namely P.W.3 Housabai and P.W.4 Rajendra, prima facie it cannot be said that this is a case of no evidence. 4 5. In that light of the matter, this application which is sans merit is, therefore, dismissed. (N.D. DESHPANDE, J.) ( P.V.HARDAS, J.) amj/criap529.10