1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION NO. 681/11 IN CRIMINAL APPEAL NO. 406 OF 2011 Prakash alias Udiya s/o Natobar Gena .vs. The State of Maharashtra Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. C.H. Jaltare, Advocate for applicant, Mr. T.A. Mirza, Additional Public Prosecutor for respondent. CORAM : P.V. HARDAS & PRASANNA B. VARALE, JJ. DATED : NOVEMBER 15, 2011. The applicant/original accused no.4 Prakash by this application seeks suspension of the substantive sentence of imprisonment and his enlargement on bail pending the decision of the appeal. The applicant stands convicted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and is sentenced to imprisonment for life. It is also stated before us that the applicant was on bail during trial. The case against the present applicant rests upon the solitary testimony of PW.4 Abhay who is said to be an eye-witness to the incident. Undisputedly, the applicant was not named in Exh. 126 which is the first information 2 which was communicated by the witness to the police and which is reduced into writing in the station diary and which is at Exh. 126. The First Information Report at Exh. 105 also does not name the present applicant. Supplementary statement of PW.4 Abhay came to be recorded after seven weeks of lodging of the First Information Report and in that also the applicant is not named. Abhay has, however, identified the present applicant in a Test Identification Parade which had been conducted. No weapons or any blood stained clothes have been seized from the present applicant. The present applicant along with the other accused who have been named in the First Information Report as well as the original accused No.3 Nilesh, therefore, came to be convicted for offence punishable under Section 302 of the Indian Penal Code. Mr. C.H. Jaltare, learned Counsel for the applicant, has urged before us that assuming that the Test Identification Parade is established by the prosecution to have been properly held, yet the fact remains that the applicant was not named in the First Information Report and the only evidence against the present applicant comprises of his identification in the Test Identification Parade. 3 In the light of said fact, we are inclined to allow the present application. Our attention has also been invited to an order passed by the Division Bench of this Court dated 29.9.2011 to which one of us (P.V. Hardas, J.) was a member. The aforesaid order came to be passed in Criminal Application No. 546/11 releasing original accused no.3 Nilesh on bail pending the decision of the appeal. In the aforesaid order, it is recorded that even Nilesh had not been named as accused either in the First Information Report or in the supplementary statement recorded by the police and the only evidence against Nilesh then was his identification in the Test Identification Parade by PW.4 Abhay. It has also been recorded by us that the evidence of the police officers indicate that the accused when they were taken to the Court for attending the dates for the purposes of remand were not “Ba Parda”. In the light of the facts of the present application as well as our order dated 29.9.2011, we are inclined to allow the present application. Accordingly, the present application is allowed and the substantive sentence of imprisonment for life is suspended pending the decision of the appeal on the applicant furnishing a P.R. Bond in the sum of Rs.20,000/- with one surety in the like amount to the 4 satisfaction of the trial Court. The applicant shall attend the Ganeshpeth Police Station, Nagpur once in three months on first Saturday of the quarter. Any breach of the condition of attending Police Station shall be immediately intimated by Ganeshpeth police station, Nagpur to the learned A.P.P. who would then be at liberty to seek cancellation of the bail on account of breach of conditions imposed by this Court. This order obviously would not operate as a precedent in respect of the bail application if at all filed on behalf of original accused nos. 1 & 2. The application stands allowed on the conditions referred to above. Hamdast granted. Judge Judge J.