1 APPA.281-2011 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 281 OF 2011 IN CRIMINAL APPEAL NO. 424 OF 2010 Santosh Sakharam Jadhav & Anr. ..Applicants. Vs. The State of Maharashtra ..Respondent. -- Mr. S.V. Marwadi for the Applicant. Mrs. A.S. Pai, APP for the State. -- CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. MARCH 03, 2011. P.C.: 1 Heard Mr. Marwadi, the learned counsel for the applicant (Origi. Accused Nos.2 and 3) in Sessions Case No.181 of 2007. 2 The applicant along with accused nos.1 and 4 has been convicted by the learned Additional Sessions Judge, Palghar for the offence punishable under Section 302 read with Section 34 of IPC and the accused have been sentenced to undergo life imprisonment. Criminal Appeal 2 APPA.281-2011 No.424 of 2010 challenging the said order of conviction and sentence has been admitted and therefore, this application by accused nos.2 and 3 for being released on bail during the pendency of the appeal. 3 Mr. Marwadi, the learned counsel for the applicant at the outset pointed out that the applicants were released on bail during the trial. He invited our attention to the dying declaration (Exh.57) which came to be recorded by PW-7 Shri Anil Patil, duty officer at the Manor Police Station. It was more particularly pointed out by Mr. Marwadi that the alleged assault on the deceased is only by sticks and in the evidence of PW-12 Dr. Mangesh Barde there were six external injuries noticed on the person of the deceased, when the deceased was examined at the first instance on 17.4.2007. However, in the evidence of PW-8 Dr. Swati Parab who performed the postmortem, external injuries noticed were fifteen and therefore, Mr. Marwadi submits that the prosecution failed to point out as to how additional injuries were noticed on the person of the deceased. The learned counsel submitted that this failure on the part of the prosecution to explain the additional injuries, is sufficient, prima facie, to release the applicants on bail. 3 APPA.281-2011 4 Mrs. Pai, the learned APP for the State on the other hand submitted that the prosecution examined six eye-witnesses in addition to the dying declaration (Exh.57). She also submitted that the prosecution proved that the applicants were assailants and the cause of death of the deceased, as per PW-8 Dr. Swati Parab, was “haemorrhagic shock due to multiple injuries” and the injuries mentioned in column 19 to occipital bone and brain were the vital injuries for causing death. Mrs. Pai, therefore, urged that the bail application deserves to be rejected. 5 We have noticed that the prosecution case was based on six eye-witnesses in addition to the dying declaration recorded by PW-7 Shri Anil Patil, duty officer at the Manor Police Station (Exh.57). In addition, statements of four eye-witnesses i.e. PW-2 Ramchandra Pawar, PW-3 Rajkumar Sogale, PW-4 Yogesh Patil, and PW-5 Praful Patil were recorded under Section 164 of Cr. P.C. by the learned Judicial Magistrate First Class. We have also perused the depositions of two doctors i.e. PW-8 Dr. Swati Parab and PW-12 Dr. Mangesh Barde. We find, prima facie, that there is no case made out to suspend the order of conviction under Section 389 of Cr. P.C. and release the applicants on bail. 4 APPA.281-2011 6 Hence, this Criminal Application is rejected. Liberty to apply for fixing an early date of hearing of the appeal as soon as the paper book is ready. (U. D. SALVI,J.) (B. H. MARLAPALLE,J.)