1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 2294/2009 in Criminal Appeal No. 343/2009 Sanjay Sadashio Dhurwe .vs. The State of Maharashtra, through its Police Station Officer, Police Station: Shendurjana Ghat, District: Amravati.. ----------------------------------------------------------------------------------- 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 : 20.11.2009 DATE OF PRONOUNCEMENT: 26.11.2009 Heard Mr. N.R.Saboo, learned counsel for the applicant and Mr. T.A. Mirza, learned A.P.P. for the respondent. 2. The applicant who has been convicted for the offences punishable under Sections 302 and 506 of the Indian Penal Code seeks suspension of sentence and grant of bail. The applicant has been convicted for the above referred offences for having committed the murder of Hawasu Dhurve and having committed criminal intimidation by threatening the informant Bastiram Dhurve by Judgment and order dated 24.4.2009 by the Additional Sessions Judge, Amravati in Session Case No. 233/2005. 2` 3. It is the case of the prosecution that accused alleged that deceased Hawasu Dhurve has practiced witch craft on him and, therefore, he had a grudge against him. On 24.8.2005 in between 3 to 3.30 p.m. the accused assaulted deceased Hawasu Dhurve in front of the house of Madhu Ahake with knife in the abdomen and on the neck of the deceased and thereafter threatened the informant and his brother to kill them and fled away from the spot. The deceased died on the spot. 4. In the course of the trial the prosecution examined eight witnesses and produced several documents to prove the case against the accused. The learned trial Judge accepted the prosecution case and convicted and sentenced the applicant – accused as stated above. 5. Mr. Saboo, learned counsel for the applicant submitted that the evidence of informant P.W. 1 Bastiram Dhurve and P.W. 3 Sushila Dhurve who claimed to be eye witnesses does not inspire confidence inasmuch as it is difficult to believe that they could see assault in front of the house of Madhu Ahake from their house. Mr. Saboo further submitted that the presence of P.W. 1 Bastiram Dhurve and P.W. 3 Sushila Dhurve at the time of incident is very doubtful. According to Mr. Saboo, the evidence of P.W. 3` 1 Bastiram Dhurve and P.W. 3 Sushila Dhurve as eye witnesses can not be accepted since they could not see the alleged incident from their house. Mr. Saboo further submitted that the prosecution has not examined Nirmala and Rambhau who according to the prosecution had also witnessed the incident. Therefore, adverse inference has to be drawn against the prosecution. He further submitted that no motive has been proved by the prosecution and, therefore, conviction recorded by the trial Court is unsustainable. Mr. Saboo further submitted that the applicant is 22 years of age and was on bail pending trial and he did not misuse liberty and, therefore, this is a fit case in which substantive sentence imposed on the applicant deserves to be suspended and the applicant released on bail. 6. Per contra, Mr. Mirza, the learned A.P.P. submitted that the evidence of the two eye witnesses viz. P.W. 1 Bastiram Dhurve and P.W. 3 Sushila Dhurve inspires confidence as they are the natural eye witnesses and there is nothing brought on record that from their house they could not see the assault by the accused on Hawasu Dhurve. According to Mr. Mirza, non examination of Nirmala and Rambhau is not fatal to the prosecution case in view of the cogent evidence led by P.W. 1 Bastiram Dhurve and P.W. 3 Sushila Dhurve. He further submitted that the evidence of these two 4` witnesses stands corroborated by the medical evidence tendered through Dr. Ashwini Madavi (P.W.6) who had conducted the post mortem examination on the dead body of the decease and further the recovery of the knife at the instance of the accused and the C.A. Report which discloses the presence of the blood on the clothes of the accused also corroborate the ocular evidence. 7. We have carefully considered the rival submissions and perused the record. 8. We are unable to agree with Mr. Saboo that the evidence of Bastiram Dhurve (P.W.1) and Sushila Dhurve (P.W.3) that they were the eye witnesses to the assault by the accused on the deceased on 214.8.2005 is doubtful. In our considered opinion, their evidence is quite cogent and convincing and nothing tangible has been brought on record to discard their testimonies nor there is evidence on record that from their house they could not see the assault by the accused on the deceased. Mere fact that Nirmala and Rambhau have not been examined is not sufficient to acquit him. Moreover, as rightly submitted by Mr. Mirza the evidence of the two eye witnesses stands corroborated by the medical evidence tendered through Dr. Ashwini Madavi (P.W.6) which clearly 5` proves the presence of one stab wound and three incised wounds on the vital parts of the deceased. The evidence of Dr. Ashwini Madavi (P.W.6) clearly proves that the death of deceased was due to hypovolemic shock due to stab injury over the abdomen. The testimony of the eye witnesses and the evidence of Doctor Madan stand corroborated by the discovery of knife at the instance of the accused which lends corroboration to the prosecution case. The presence of the blood on the clothes of the accused as disclosed in C.A. Report, also lends corroboration to the ocular testimony. Thus, there is cogent evidence on the record to establish the offences against the applicant for which he has been convicted by the trial Court. Having regard to the nature of the injuries and the weapon used and the manner of assault case under Section 302 of the Indian Penal Code is clearly made out against the applicant. 9. Insofar as the submission of Mr. Saboo that the applicant is a young boy of 22 years and that he was on bail pending the trial is concerned, the same does not also advance the case of the applicant. It is well settled by catena of decisions of the Apex Court that consideration of grant of bail at the stage of trial and post conviction are different. It is also well settled that an accused who has been 6` convicted for the offence punishable under Section 302 of the Indian Penal Code has to make out exceptional case for suspension of sentence and grant of bail. No such case has been made out in the present case. The applicant has committed gruesome murder of Deceased Hawasur by assaulting him with knife. Therefore, this is not a fit case for suspension of sentence and grant of bail to the applicant. 10. For the reasons aforesaid, we find no merit in the application. Accordingly, the application is dismissed. JUDGE JUDGE patle 7`