1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR 1. APPA No. 240/2009 in Criminal Appeal No. 127/2007 Kadu Ganpat Ingle and others vs. The State of Maharashtra, through P.S.O. Dhamangaon Badhe, Dist. Buldana. 2. APPA No. 242/2009 in Criminal Appeal No. 127/2007 Ganpat s/o Sampat Ingle vs. The State of Maharashtra, through P.S.O. Dhamangaon Badhe. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. CORAM : A.P.Lavande & Prasanna B. Varale,JJ DATE OF RESERVING : 2.12.2009 DATE OF PRONOUNCEMENT : 8.12.2009 Heard Mr. R.M. Daga, learned counsel for the applicants and Mr. T.A. Mirza, learned A.P.P. for respondent. 2. Both these applications are being disposed of by common order since these applications have been filed in Criminal Appeal No. 127/2007 filed by thirty one appellants challenging the Judgment and order of conviction passed by the Additional Sessions Judge, Buldana convicting the appellants for the offences punishable under Sections 147, 148, 324 and 302 read with Section 149 of the Indian Penal Code. 2` 3. The applicants in Criminal Application No. 240/2009 are appellant nos. 1,4,6,7,9 and 10 whereas the applicant in Criminal Application No. 242/2009 is appellant no. 5. These applications have been filed seeking suspension of substantive sentences and bail. 4. All the appellants filed Criminal Application Nos. 3865/2007, 115/2008 and 433/2008 seeking suspension of sentence and grant of bail. By order dated 27.3.2008 this Court after considering the merits dismissed the applications holding that prima facie case was made out against all the accused/ appellants and, therefore, it was not a fit case for suspension of sentence and grant of bail. 5. In respect of the Criminal Application No. 240/2009 Mr. Daga, learned counsel for the applicants submitted that certain facts were not brought to the notice of this Court and, therefore, the matter requires to be reconsidered in the light of the changed circumstances. According to Mr. Daga, information sought under the Right to Information Act by the applicants revealed that there was a counter case bearing Criminal Case No. 115/2004 filed against the deceased as well as nine accused in which the accused were acquitted. Second circumstance which according to Mr. Daga has come to the knowledge of the applicants that deceased was admitted on 26.10.2000 3` in Hospital and he was discharged on 3.11.2000 and he died on 6.11.2000. The third circumstance is that deceased had only two injuries; one lacerated incised wound and lacerated wound. Fourthly, the three alleged eye witnesses had implicated only the accused 1,2 and 3 and, therefore, in any case other accused deserve to be released on bail. 6. Insofar as the Criminal Application No. 242/2009 is concerned Mr. Daga has placed reliance upon the birth certificate of accused/original appellant no.5 Ganpat Sampat Ingle which discloses that he was born on 5.7.1933 and as such presently he is 76 years old. Mr. Daga submitted that since the appellant no.5- applicant is 76 years old and the appeal is not likely to be taken in the near future for final hearing the appellant no.5-applicant is entitled to be released on bail. In support of this submission, Mr. Daga, learned counsel relied upon the Judgment of the Apex Court in Anil Ari vs. State of West Bengal (2009 ALL MR (Cri) 1753 (S.C.). According to Mr. Daga, at the time of consideration of application for suspension of sentences and grant of bail on earlier occasion this aspect was not brought to the notice of this Court and as such was not considered and, therefore, the matter deserves to be reconsidered. Mr. Daga further submitted that no overt act is attributed to the applicant by any of the alleged eye witnesses who have been examined by the 4` prosecution. 7. Per contra, Mr. Mirza, learned A.P.P. submitted that the case of the appellants was considered on merits by this court and this court by order dated 27.3.2008 dismissed the applications filed by the appellants for suspension of sentence and grant of bail. Therefore, no case has been made out for reconsideration at this stage. 8. We have carefully considered the rival submissions and perused the record and order dated 27.3.2008 passed by this court. Insofar as the applicants in Criminal Application No. 240/09 are concerned, we find that the grounds urged by the applicants for re-consideration of order dated 27.3.2008 are not at all germane for reconsideration of the matter regarding suspension of sentences and grant of bail to the applicants. This court after considering the evidence on record came to prima facie conclusion that there was sufficient evidence to connect the applicants with the crime and, therefore, no case was made out for suspension of sentences and grant of bail. Therefore, we are not inclined to suspend substantive sentences imposed on the applicants and release them on bail at this stage. 9. Insofar as the applicant in Criminal 5` Application No. 242/2009 is concerned, there is no dispute that presently he is 76 years old. There is also no dispute that this fact was not brought to the notice of this Court while earlier applications were being considered by this Court. Insofar as the Judgment in the case of Anil Ari(supra) is concerned, the Apex Court having regard to the fact that the applicant was 70 years old directed release of the applicant without consideration of merits of the case. The Apex Court held that on the peculiar facts of the case and considering the age of the accused appellant, he was entitled to be released on bail. We are unable to hold that said Judgment can be used as the precedent holding that an accused aged 70 years if convicted for murder is entitled to be released on bail pending his appeal. However, considering the fact that the applicant Ganpat Sampat Ingle is 76 years old and no overt act is attributed to the applicant by any of the witnesses and also considering the fact that the appeal filed by the appellant is not likely to be disposed of for few more years since we are presently dealing with the Criminal Appeals of the year 2003 and 2004 we deem it appropriate to suspend the substantive sentences imposed on him and release him on bail on the following terms and conditions. i) The applicant – Ganpat Sampat Ingle shall execute the bail bond in the sum of Rs. 10,000/- 6` with one surety in the like amount to the satisfaction of the learned trial Judge. ii) The applicant shall deposit the fine amount in the trial Court, if not already deposited before executing the bail bond. iii) The applicant shall not indulge in any criminal activities pending the disposal of the appeal. 10. Both the applications stand disposed of accordingly. JUDGE JUDGE patle