1 appa-916-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO. 916 OF 2010 IN CRIMINAL APPEAL NO. 616 OF 2009 Yatendrasingh Ajabsingh Chauhan ..Applicant /Appellant. versus The State of Maharashtra ..Respondent Mr Nitin Pradhan i/by Subhada Khot, for the Applicant. Ms M. H. Mhatre, Additional Public Prosecutor – for Appellant / State. CORAM : D. D. SINHA AND A. R. JOSHI, JJ. DATED : SEPTEMBER 06, 2010. P.C. : Heard Shri Nitin Pradhan the learned Counsel for the applicant and Ms Mhatre, the learned Additional Public Prosecutor for State. 2. The counsel for the applicant has submitted that in the present case, the prosecution has examined PW 1 Sandip, as sole eye-witness to the 2 appa-916-10 incident. It is contended that the evidence on record does not show that the deceased and the accused were on inimical terms with each other. On the other hand, even if the prosecution case is accepted for the sake of argument even then the incident has taken place in sudden fight and at the spur of moment, without pre-meditation the applicant alleged to have fired the gun. It is contended that considering the prosecution case, as it is, the offence alleged to have been committed by the applicant would not be punishable under Section 302 of the Indian Penal Code and at the most it would be 304 Part II. It is, therefore, contended that the applicant is entitled to be released on bail. 3. The Additional Public Prosecutor, on the other hand, supported the judgment and finding of conviction recorded by the trial Court for the offence punishable under Section 302 of Indian Penal Code. It is contended that the evidence on record clearly shows that the accused took out a gun, fired from the same, deceased fell down on the ground and died on the spot. It is contended that the offence is cold blooded and, therefore, considering the other evidence on record the offence falls within the ambit of Section 302 of the Indian Penal Code. 4. Considered the contentions canvassed by the respective counsel and considered the prosecution evidence on record. At this stage, it is not possible for this Court to re-appreciate the evidence in its entirety so as to 3 appa-916-10 find out whether the offence is punishable under Section 302 or 304, Part I or Part II, of the Indian Penal Code. 5. Considering the evidence available on record, we are of the view that the testimony of eye-witness is corroborated by the other prosecution evidence on record, and, therefore, in our view, no case is made out at this stage for showing indulgence. Hence, Criminal Application is dismissed. (D. D. SINHA, J.) (A. R. JOSHI, J.)