1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2736 OF 2009 IN CRIMINAL APPEAL NO.252 OF 2009 Bapurao s/o Bappaji Kawade ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ..... Mrs. S.S. Jadhav, Advocate for the applicant Mrs. R.R. Mane, A.P.P. for the respondent ..... CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 11TH AUGUST, 2009. ORAL ORDER (PER DAVARE, J.) : 1. Perused. Heard learned counsel for the parties. 2. The applicant/ appellant (original accused No.1) has preferred the present application requesting to suspend the sentence awarded to him by learned Sessions Judge, Jalna in Sessions Case No.106/2007 by judgment and order dated 16.10.2008 and to enlarge him on bail. By the said judgment and 2 order, the applicant was convicted under Section 302 read with Section 34 of the Indian Penal Code as well as under Section 341 read with Section 34 of the Indian Penal Code and was sentenced to suffer life imprisonment and to pay fine of Rs.25,000/-, in default of payment of fine, to suffer S.I. for one year and also R.I. for one month and to pay fine of Rs.500/-, in default of payment of fine, to undergo S.I. for 5 days respectively and the applicant/ appellant has challenged the said conviction and sentence in the appeal and requested to release him on bail during the pendency of the said appeal. 3. At the outset, the applicant has preferred the present application on medical ground, contending that he is suffering from altered signal intensity in the spinal cord at C2, C3 level which is Hypo to Iso intense on T1, W1, suggested of Myelo- malacic changes, but made submission on the merits of the case also. 4. The incident of murder of Kantalal took place on 29.3.2007, allegedly due to enmity between the appellant and deceased Kantalal. The appellant inflicted axe blow on the left hand of the deceased and other accused persons have assaulted on the neck, chest and other parts of the body of the victim. A complaint was recorded and Crime was registered under Sections 3 302, 341, 147, 148, 149 and 323 of the Indian Penal Code and applicant and other accused were charged thereunder. In all 9 witnesses were examined by the prosecution to substantiate the charges levelled against the applicant and other accused persons. 5. The learned counsel for the applicant canvassed that the applicant dealt axe blow on the left arm of the deceased which is not vital part of the body of the victim and, therefore, it is submitted that the role of the applicant/ appellant during the occurrence of the incident is comparatively lesser degree and, therefore, he is entitled to be released on bail. It is further submitted by learned counsel for the applicant that he is suffering from signal intensity in the spinal cord at C2, C3 level which is Hypo to Iso intense on T1, W1, suggested of Myelo-malacic changes and he requires urgent special treatment therefor and hence, requested to enlarge him on bail. 6. The learned A.P.P. opposed the present application, contending that the wife of the victim P.W. 1 Shlabai as well as P.W.3 Venkat and P.W.4 Ganesh are the eye witnesses to the occurrence of the incident. Learned A.P.P. canvassed that the medical evidence discloses that the deceased sustained as many as 10 injuries namely 6 incised and 4 stab injuries which tally with 4 the weapon like axe and jambia and role attributed to the applicant herein is of inflicting axe blow to the victim. 7. The record and proceedings was made available and we have perused the record and proceedings of the matter and considered the same as well as gave anxious thought to the submissions made by the learned counsel for the parties, and we are of the considered view that although P.W. 3 Venkat and P.W. 4 Ganesh, the two eye witnesses were disbelieved by the trial Court, P.W.1 Shilabai, wife of the victim Kantalal has been believed by the trial Court and appellant was held guilty for the offence of murder of the deceased Kantalal. Moreover, it is seen that the learned Sessions Judge applied Section 34 of the Indian Penal Code also considering the evidence although charge therein was not framed and the said aspect also cannot be overlooked. 8. Moreover, after going through the record, it is seen that the investigating officer had been to the spot of incident immediately after he got the information of the incident within half hour and recorded the spot panchanama and also the complaint. Besides that, the medical evidence discloses that the deceased sustained as many as 10 injuries namely 6 incised and 4 stab injuries, which tally with the weapon like axe and the role 5 attributed to the appellant in the occurrence of the incident is of inflicting axe blow to the deceased. 9. As regards the medical aspect of the application, it appears that the medical problem posed by the applicant/ appellant is not much grave and serious and the applicant/ appellant is able to walk. Moreover, it also appears that he was given medical treatment in J.J. Hospital, Mumbai and also in Jaslok Hospital, Mumbai. Hence, the present application preferred on medical count, apparently, bears no substance. 10. Moreover, it is material to note that the appellant was not enlarged on bail during the pendency of the trial. Hence, considering the seriousness and gravity of the offence and also the evidence on record, we do not find that this is a fit case for the grant of bail to the applicant/ appellant. Hence, the present application stands dismissed. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) fmp/cri2736.09