1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 345 OF 2009 IN CRIMINAL APPEAL NO. 1227 OF 2005 Kamlakar Devidas Patil. ... Applicant. Versus The State of Maharashtra. ... ... Respondent. Mr. Rajesh D. Bindra for the Applicant. Dr. F. R. Shaikh, APP for the Respondent. CORAM : J. N. PATEL and A. A. SAYED, JJ. DATED : 18TH NOVEMBER,2009. P. C.: This is an application for suspension of sentence by one of the co- accused / convict Kamlakar Devidas Patil, who along with others have been found guilty by the trial court for having committed offence under Section 302 read with Sections 147, 148 and 149 of the Indian Penal Code. 2. According to the prosecution, on 3rd February, 2003 between 9.00 p.m. and 9.30 p.m. the applicant along with Devidas Vasudeo Patil and Tarun Devidas Patil and three others accosted the deceased Suresh Gajanan Patil and assaulted him with chopper and stones resulting in his death. In support of their case, the prosecution has examined eye witnesses Sushila Patil, Sachin Patil, Nilesh Patil 2 and Damodar Tare who have spoken about the presence and participation of the accused along with others and therefore the trial court found and held them to be guilty of charge of murder committed by the applicant / accused along with others in furtherance of common intention. 3. Learned Counsel for the applicant / accused submitted that the prosecution case is based on evidence of interested witnesses, who have failed to identify both the accused in the court due to darkness. Learned Counsel has also drawn our attention to other facts, like, their evidence does not stand corroborated by medical evidence in so far as relating to the time of death. Secondly, their evidence is not corroborated either by seizure of weapon and stones which is alleged to have been used in the commission of murder and that it could have been difficult for the eye witnesses to notice and identify the accused persons at the time of commission of the offence as there was darkness and therefore the applicant / accused is entitled for bail on substantive sentence being suspended. 4. Learned APP submits that the applicant / accused is a person who has dealt a fatal blow with a chopper which is corroborated by medical evidence and that the trial court has held that the prosecution has proved the case against the applicant / accused and two other co-accused. It is submitted that the contradictions are minor in nature and do not affect the credibility of evidence of the witnesses. Learned APP submits that merely because the witnesses are 3 interested being close relatives of the deceased is not sufficient to discard their evidence as there is no reason to believe as to why they will falsely implicate the assailants. 5. We have gone through the evidence from the records and proceedings and the judgment of the trial court in order to prima facie arrive at the conclusion whether the applicant / accused can be released on bail by suspending sentence. The submissions made by the leaned Counsel for the applicant / accused cannot be considered at this stage as there is a finding of the trial court in respect of the fact that the applicant / accused along with the co- accused and others are assailants. This is borne out from the evidence on record. Therefore, we are not inclined to suspend the sentence of the applicant / accused and we hereby reject his application. 6. Learned Counsel for the applicant submitted that appeal filed by the appalicant / accused be expedited. May be because the bail application of the applicant / accused is rejected, does not entitle him to get his appeal listed by jumping queue as there are persons waiting for their turn and no exceptional case is made out in the matter. Hence request is rejected. Sd/- (J. N. PATEL, J.) Sd/- (A. A. SAYED, J.)