(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 1879 of 2011 (In Criminal Appeal No. 222 of 2011) 1. Goraksha s/o. Vitthal Vighne, Age : 25 years, Occupation : Agriculture, 2. Dharmanath s/o. Raghunath Palve, Age : 38 years, Occupation : Agriculture, .. Applicants (Original accused Both R/o. : Maka, Taluka : Newasa, nos.3 & 4) District : Ahmednagar. versus The State of Maharashtra. .. Respondent. ....................... Smt. S.S. Jadhav, Advocate, for the applicants. Mr. B.V. Wagh, Additional Public Prosecutor, for the respondent. Mr. A.P. Avhad, Advocate, for PW 9 (injured). ........................ (2) CORAM : SHRIHARI P. DAVARE, J. DATE : 28TH JUNE 2011 COURT'S ORDER : 1. Heard learned Counsel for the parties. 2. This is an application preferred by the applicants (original accused nos.3 and 4) seeking bail, pending hearing and final disposal of Criminal Appeal No. 222/2011, suspending substantive sentences inflicted upon them, by way of judgment and order dated 11-4-2011, rendered by the learned District Judge-2 & Additional Sessions Judge, Shrirampur, in Sessions Case No. 9/2007, for the offence punishable under Section 307, read with Section 34, of IPC. 3. The applicants have questioned the conviction and sentences inflicted upon them by filing Criminal Appeal No. 222/2011 before this Court, and the said appeal has already been admitted by me by passing order separately therein on 5th May 2011, and there is no likelihood that the said appeal would be taken up for final hearing in the near future. 4. I have perused the impugned judgment and order (3) dated 11-4-2011, and also perused the Record & Proceedings with the assistance of the learned Counsel for parties. 5. Adv. Smt. S.S. Jadhav, for the applicants, submits that the fine amount has been already deposited by the applicants before the trial court. Moreover, it also appears that the substantive sentence inflicted upon the applicants is for seven years, and the learned Counsel for the applicant has canvassed that the said sentences are short term sentences, relying upon the case of Kiran Kumar Vs. State of M.P. (2001 AIR SCW 5130). 6. As regards the merits of the matter, learned Counsel for the applicant has canvassed that the prosecution is trying to hide genesis of the incident and even assuming for the sake of assumption, the case of the prosecution that the injuries sustained by the victim Gorakshnath Ghule (PW 9) are on the left shoulder and thigh, she has pointed out from the injury certificate Exhibit 65, that the victim sustained in all four injuries, and injury Nos.1, 2 and 3 were grievous, whereas injury No.4 is merely abrasion running vertically connecting the incised wound. In the said context, learned Counsel for the applicant has canvassed that according to the prosecution case, said injuries were caused to the victim by the accused while the victim was riding on motorcycle, and considering the injury No.4, the case put forth (4) by the prosecution is not digestible since even as per prosecution, the victim was not standstill. Moreover, it is also canvassed that alleged injuries which were sustained by the victim, on left shoulder and thigh, are not on vital part and situs of the injuries is important factor while considering ingredients of Section 307 of IPC. It is further canvassed by the learned Counsel for the applicant, that the incident occurred during day time, but the accused were present in the crowd itself, and in fact, they had no guilty mind, and the said conduct of the applicants deserves to be considered. Learned Counsel for the applicant also pointed out that when the alleged weapon Article "B" i.e. scythe was shown to the victim Gorakshnath Ghule (PW 9), during the cross examination, he has stated that it has no sharp edge, but the injury certificate Exhibit 65 discloses the said injury of incised wound caused due to sharp instrument, and therefore, submitted that the said injury appears to be suspicious. Accordingly, learned Counsel for the applicant submitted that the applicants are entitled to be enlarged on bail during the pendency and final hearing of the Criminal Appeal. 7. Learned APP Mr. B.V. Wagh, for the respondent, has opposed the present application vehemently and submitted that the prosecution has examined as many as 11 witnesses to substantiate the charges levelled against the accused and there is (5) direct as well as circumstantial evidence against the accused and more particularly, prosecution witness Nos. 1, 2, 4, 6 and 9, are eye witnesses to the occurrence of the incident. It is also canvassed by the learned APP, that blood stained clothes of the victim were recovered, and the blood group thereon matches with the blood group of the injured i.e. Gorakshnath Ghule (PW 9). It is further submitted that the weapons i.e. sickle was recovered from applicant No.1 Gorakshnath, and scythe from applicant No. 2 Dharmanath under memorandum and panchanama. Learned APP has also canvassed that Gorakshnath Ghule (PW 9) has stated in his deposition that the applicants attempted to hit blow of scythe on the head of victim Gorakshnath Ghule (PW 9), but it was missed and the said victim sustained injury on left shoulder and the said aspect cannot be ignored. Accordingly, learned APP supported the judgment of learned trial court and submitted that after scrutinizing and appreciating the evidence, learned trial court convicted the applicants, and therefore, the applicants are not entitled to be enlarged on bail, and hence submitted that the present application be dismissed. 8. As regards the submission of learned APP, that the applicants attempted to hit the blow of scythe on the head of victim, but it was missed and the victim sustained injury on left shoulder, learned Counsel for the applicant has pointed out that (6) the said very aspect is amounting to vital omission in the deposition of Gorakshnath Ghule (PW 9), and therefore, same cannot be of any assistance to the case of the prosecution. Apart from that, applicants were on bail during the pendency of trial and there is no grievance of the respondent in respect of misuse of the said liberty, and there is no likelihood that the appeal filed by the applicants would be taken up for final hearing in the near future, as well as, sentences awarded to the accused are short term sentences. In the circumstances, I am inclined to allow the present application. 9. In the result, present Criminal Application is allowed, and it is directed that the applicant No.1, namely, Goraksha, and applicant No.2, namely, Dharmanath, be released on bail on their furnishing P.R. Bond in the sum of Rs. 20,000/- [Rupees twenty thousand] each, with one solvent surety in the like amount by each of them, before trial court, pending hearing and final disposal of Criminal Appeal No. 222 of 2011, suspending the substantive sentences inflicted upon them, with a direction that applicant nos.1 and 2 shall give attendance before the trial court once in a quarter till the disposal of the Criminal Appeal, and the present application stands disposed of accordingly. (7) 10. Record & Proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka1879