1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO.1209 OF 2009 IN CRIMINAL APPEAL NO.224 OF 2009 Yunnus Husen Pathan & anr. ... APPLICANTS VERSUS The State of Maharashtra & anr. ... RESPONDENTS ..... Shri S.S. Jadhavar, Advocate for the applicant Shri B.J. Sonawane, A.P.P. for respondent No.1. Shri S.S. Wagh, Advocate for respondent No.2. ..... CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 20TH AUGUST, 2009. ORAL ORDER (PER DAVARE, J.): 1. Perused. 2. By the present application, the applicant/ accused No.1 seeks to suspend the substantive sentence awarded by the learned Additional Sessions Judge-2, Ahmednagar in Sessions Case No.137/2007 on 21.3.2009 and prayed to enlarge him on bail during the pendency of the appeal. 2 3. The applicant / accused No.1 was convicted for the offence punishable under Sections 302 and 324 of the Indian Penal Code and was sentenced to suffer life imprisonment and fine and was also sentenced to suffer R.I. for two years respectively. 4. The applicant / accused No.2 was convicted under Section 323 of the Indian Penal Code and was sentenced to suffer S.I. for 11 months. Learned counsel for the applicant submitted that after registration of the crime, the applicant No.1 was arrested on 25.3.2007 and the applicant No. 2 was arrested on 20.3.2007 and both were released on bail during the pendency of trial on 11.2.2008 and 5.3.2008 respectively. Hence, it is submitted by learned counsel for the applicants that so far as applicant No. 2 is concerned, he has already undergone the period of sentence imposed on him and, therefore, pressed the present application for applicant No.1 only. 5. The alleged incident occurred on 13.3.2007 at about 6.30 a.m. at Bajar Tal on Gurewadi Nanaj Road. The complainant Latif is the brother of deceased Rashid whereas the applicant Nos.1 and 2 are real brothers. The applicant No.1 was running Pakiza Mutton Shop and complainant Latif’s nephew namely Amjad was running Janta Muttom Shop and deceased Latif used to help him in running the said business. On 13.3.2007 at about 6.30 a.m. deceased Rashid and Amjad had gone to 3 Janta Mutton Shop and complainant followed them, who heard shouts towards Bazar Tal and ran towards the said place and saw that applicant Nos.1 and 2 were beating the victim Rashid by means of iron rod and stick. The complainant and his nephew Amjad intervened to rescue the quarrel, but the applicant assaulted the victim Rashid by iron rod and stick. The deceased Rashid sustained head injury during the said incident and became unconscious on the spot and was removed to Jamkhed Primary Health Centre for medical treatment, who expired subsequently. 6. The learned counsel for the applicant No.1 submitted that he allegedly gave stick blow on the head of the victim, but there was no intention to kill the victim Rashid. It is also submitted by learned counsel for the applicant that although the incident occurred in front of Mutton Shop, no sharp and edged weapon is used by the applicant during the occurrence of the incident of assault and assault was caused by stick upon the victim which itself indicates that there was no intention to kill the victim. The learned counsel for the applicant further submitted that the incident occurred out of grave and sudden provocation and there was no intention to murder the deceased Rashid. 7. The learned counsel for the applicant also invited our attention to the aspect that although the applicant No.1 suffered right maxila fracture, the prosecution did not bring the said aspect on record and, therefore, the 4 applicant No.1 was required to examine D.W.1 Dr. Ashok Kale to that effect. The learned counsel for the applicant further submitted that the applicant was on bail during the pendency of the trial and, therefore, prayed that he be enlarged onbail during the pendency of the accompanying appeal also. 8. Shri B.J. Sonawane, learned A.P.P. opposed the present application and invited our attention to the observations made by the learned trial Judge in paragraph No.55 of the judgment, wherein it is categorically observed that the applicant/ accused No.1 firstly gave abuses to victim Rashid and hence, it is submitted that, it was not a sudden fight and there was no question of grave and sudden provocation as canvassed by learned counsel for the applicant. It is also pointed out by learned A.P.P. that there are eye witnesses to the occurrence of the incident including Mahavir Pardeshi (P.W.3) and Somnath Pawar (P.W.4), whose testimonies connect the applicant No.1 to the crime. 9. Shri Wagh, learned counsel for the complainant also vehemently opposed the present application and submitted that blow inflicted by the applicant No.1 upon the head of the victim was so forceful and was by heavy and solid stick which resulted into big sound like “fat” and thereby the skull of the victim was broken and thereupon the victim fell, but the applicant No.1 gave another blow on the back of the victim, which itself 5 indicates the intention of the applicant No.1 to kill the deceased Rashid. Moreover, it is also submitted by learned counsel for the complainant that the blows inflicted by the applicant No.1 upon the deceased were on the vital part of the deceased which resulted into death of the deceased and force applied while inflicting the said blows cannot be ignored. 10. We have gone through the record and proceedings and also perused the oral, documentary and medical evidence as well as perused the impugned judgment under challenge and having the comprehensive view of the matter, the prosecution has examined two eye witnesses i.e. P.W.3 Mahavir and P.W.4 Somnath and also examined three doctors i.e. P.W.6 Dr. Zagade who examined the deceased at Primary Health Centre, Jamkhed, P.W.9 Dr. Mahesh Muley, private medical practitioner at Ahmednagar and P.W.8 Dr. Amit Gosavi, Medical Officer, Civil Hospital, Ahmednagar who performed post mortem on the dead body of the deceased and the cause of death given by P.W.8 Dr. Amit Gosavi is due to cardio respiratory failure due to brain contusion and haemorrhage involving bilateral right front parieto temporal brain area due to blunt injury with heavy hard and blunt object and apparently there appears to be substance in the submissions made by learned A.P.P. and learned counsel for the complainant. 11. Considering the eye witnesses’ account and also considering 6 the medical evidence, apparently there is evidence against the applicant No.1. Hence, the application preferred by him bears no substance and same stands dismissed. 12. Record and proceedings be sent back to the trial Court immediately. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) fmp/cri1209.09