( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4574 OF 2009 IN CRIMINAL APPEAL NO. 672 OF 2009 1. Amol Baburao Chandne .. Applicants Age. 23 years, Occ. Agriculture, R/o. Khandoba Bazar, Tal. & Dist. Parbhani. 2. Maroti Dattarao Bansode Age. 27 years, Occ. Agriculture, R/o. As above. Versus The State of Maharashtra .. Respondent Shri S.C. Bora, Advocate for the applicants. Shri K.M. Suryawanshi, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 19.01.2010 P.C. :- 1. Heard Adv. Shri S.C. Bora for the applicants and A.P.P. Shri K.M. Suryawanshi assisted by Adv. Shri R.M. Deshmukh for the respondent. This is an application filed by original accused Nos. 3 and 4. The applicants along with ( 2 ) other two accused are convicted for offence punishable under section 307 r/w 34 of the IPC & sentenced to suffer rigorous imprisonment for seven years and pay fine of Rs. 3000/-. 2. It is case of P.W.3 - Rajesh that on the day of incident i.e. on 29.09.2006, in the afternoon, he had gone to attend wrestling competition between two groups at Indrayani Mala. One group was of Dhananjay Deshmukh and another group was of Santosh Gujar. P.W.3-Rajesh has cheered the wrestlers from the group of Sanjay Gujar. Accused No.2 was aggrieved thereby and told P.W.3-Rajesh that he would teach him a lesson in the evening. It is further case of the prosecution that when in the evening P.W.3-Rajesh was proceeding on motor cycle, he was attacked by present applicants and original accused Nos. 1 and 2. Original accused Nos. 1 to 3 were armed with iron bars and accused No.4 was having a whip. There was no other eye witness except P.W.3-Rajesh. According to prosecution Rajesh told the incident immediately to P.W.1 - Kamalbai, P.W.2 - Meerabai and P.W.5 - Pralhad. However, at the time of evidence in the Court, none of these witnesses supported the prosecution case. They only said that they rushed to the spot on hearing ( 3 ) shouts and taken Rajesh to hospital. The complaint was lodged at about 2 a.m. and names of the accused were disclosed. At the time of evidence, P.W.3-Rajesh supported the prosecution case. Relying on his evidence, conviction is based. 3. The learned advocate Shri S.C. Bora submitted that so far as accused No.4 is concerned, P.W.3-Rajesh has stated in the supplementary statement that accused No.4 was not present and subsequently P.W.3-Rajesh also given one application to Tahsildar stating that accused No.4 was not present. However, while giving evidence, P.W.3-Rajesh stated that ori. accused No.4/applicant No.2 Maroti was very much present and he instigated others to kill P.W.3-Rajesh. 4. Considering the nature of evidence, length of punishment and reason given as motive for commission of crime, in my opinion, it is case where discretion can be used in favour of present applicants, who were on bail pending the Trial. Hence, the application is allowed. Pending the appeal, each of the applicant be released on bail of Rs. 20,000/- (Rupees Twenty Thousand Only) with one surety in ( 4 ) like amount, on further condition that the applicants shall not directly or indirectly try to contract or influence or threaten any of the prosecution witness. 5. The Criminal Application is accordingly allowed and disposed of. [P.R. BORKAR,J.] snk/2010/JAN10/cra4574.09