1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 156 OF 2010 IN CRIMINAL APPEAL NO. 17 OF 2010 RAJENDRA @ BHIMASHANKAR BALAJI KHAJINDAR VERSUS THE STATE OF MAHRASHTRA ... Shri R.V.Gore, Advocate for the applicant and Shri V.D.Godbharale, APP for respondent ... CORAM : S.B.DESHMUKH & S.S.SHINDE,JJ. Dated : 22.3.2010 PER COURT :- 1. Heard respective counsel. 2. The applicant seeks suspension of conviction and sentence under section 302 of Indian Penal Code (“IPC”) and his release on bail during pendency of the appeal. 3. Two accused persons, including the applicant, have faced the charges under sections 302, 201 read with 34 of IPC in Sessions Case No.78 of 2009. The learned trial Judge, after recording the evidence, 2 convicted the applicant for the offences punishable under sections 302 and 201 of IPC and sentenced him to suffer life imprisonment and fine of Rs.5,000/- in default to suffer rigorous imprisonment for six months and rigorous imprisonment for three years, to pay fine of Rs.1000/- and in default to undergo rigorous imprisonment for thee months respectively. The accused No.2 has been acquitted for the offences with which he was charged. Said judgment and order is dated 22.12.2009. 4. At the outset, learned Advocate for the applicant fairly concedes that during trial of the sessions case, the applicant was not released on bail. 5. The case of the prosecution, in brief, is that, victim / deceased Balasaheb was resident of village Dhondrai. Wife of the applicant is also from the said village. The applicant and deceased, thus, were acquainted with each others. The applicant had borrowed Rs. 70,000/- from deceased for purchase of a plot. It was a hand loan for small span of time. Loan could not be repaid by applicant. According to prosecution, deceased was insisting for repayment of the loan. On 29.11.2008, at about 9 p.m. the applicant was contacted by deceased. Deceased at the relevant time, allegedly, used a PCO (Coin Box) from the shop of Sk. Ayyub. The applicant invited deceased next day morning and assured to repay the loan amount. The date of occurrence is 30.11.2008 and time of occurrence, according to prosecution is 11.30 a.m. 3 Occurrence took place at Parner Phata on Jalna Ambad Road. It has been further alleged by the prosecution that the applicant, at the time and date mentioned above, with the help of original accused No.2 committed murder of deceased. The deceased allegedly was stabbed at neck, abdomen etc. 6. On behalf of the prosecution, to bring home the guilt, about twelve witnesses were examined, apart from the documentary evidence, adduced on record. According to prosecution, PW 2 Arjun is an eye witness to the occurrence. The learned trial Judge on appreciation of the prosecution evidence found the applicant guilty and sentenced him as said in the foregoing paragraphs 7. Learned counsel for the applicant submits that the evidence of the eye witness is not properly appreciated. According to him, more than one eye witnesses were available, but the prosecution did not examine them malafide. He submitted that the evidence brought on record by the prosecution is not sufficient to record a finding of guilt for the offence punishable under section 302 of IPC. He took us through the observations made by the learned trial Judge from paragraph No.19 and onwards of the judgment. 8. This Court has admitted the appeal. Record was called for. Record is available. Learned APP points out the findings of the trial Court 4 and evidence adduced on behalf of the prosecution 9. While appreciating the evidence of eye witness Arjun, in paragraph No.19, the trial Court has observed that the occurrence has been witnessed by this eye witness from the distance of around 100 feet. Knife blows, given by applicant to deceased, were allegedly seen by this eye witness. From the material which is brought on record, at this stage, it is not possible for us to agree with the submissions of learned counsel for the applicant that PW 2 Arjun cannot be said to be an eye witness or that he is a got up witness. We do not feel that it is a fit case wherein, bail plea made by the applicant can be favourably considered and by suspending the sentence, the applicant can be released on bail. We do not find any substance in the application. 10. In the result, the application is rejected. However, it is made clear that these are the prima facie observations made by this Court while considering the bail plea of the applicant. (S.S.SHINDE,J.) (S.B.DESHMUKH,J.) ... akl