AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.606 OF 2010 IN CRIMINAL APPEAL NO.90 OF 2009 Mahadeo Dada Bhondave ... Applicant Vs. The State of Maharashtra ... Respondent Mr. D.D. Rananaware for the applicant. Mr. Rajesh More, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATED : 25TH JUNE, 2010. P.C.:- 1. The applicant is original accused 2. He was tried in Sessions Case No.106 of 2006 by learned Sessions Judge, Satara along with three others for the offences punishable under Sections 302, 324, 323 read with Section 34 of the Indian Penal Code (for short, “the IPC”). By the impugned judgment and order, the applicant has inter alia AJN 2 been sentenced to life imprisonment. His appeal has been admitted. This is his bail application. 2. We have heard, at some length, learned counsel for the applicant. He submitted that on the same day another cross-complaint was filed. He drew our attention to the panchnama which was drawn in that case. He pointed out that in that panchnama, there is mention of a stone. He submitted that because a stone was thrown at him and the other accused by the accused in that case who are witnesses in the present case, in his defence, the present applicant rotated a stick which caused injury to the deceased and, therefore, assuming that the prosecution story is correct, the applicant cannot be held guilty of murder. Counsel submitted that injuries sustained by the deceased are not consistent with the use of an axe because an axe would cause incised wounds and not the type of injuries which were found on the head of the deceased. Counsel further drew our attention to the evidence of the Medical Officer PW-6 Dr. Pawar AJN 3 wherein he has stated that certificates, Exs.-63 and 64 were issued by him and prepared on 30/12/2005. Counsel submitted that the incident in question took place on 28/10/2005 and, therefore, these belated certificates become suspect. Counsel relied upon the judgment of the Supreme Court in Mayur Panabhai Shah v. State of Gujarat, (1982) 2 SCC 396 and pointed out that there is no irrebuttable presumption that the doctor is always a truthful witness. His evidence is to be appreciated like that of any other witness. Counsel submitted that no reliance can be placed on the evidence of PW-6 Dr. Pawar. Counsel further submitted that the person who recorded the FIR, has not been examined. All these lacunae make the prosecution story totally unacceptable. Counsel submitted that in such circumstances, the applicant be released on bail. 3. It is not possible for us to accept the submissions made by learned counsel. So far as the applicant is concerned, the case of the prosecution rests on the eye AJN 4 witness account of PW-2 Uddhav and PW-3 Shobha. Both these eye witnesses categorically stated that the applicant assaulted the deceased on his head by an axe. We find prima facie the eye-witness account to be consistent and acceptable. It is true that the doctor's evidence has to be appreciated like that of any other witness. But, it is well settled that consistent eye witness account always overrides the medical evidence and as to what effect the doctor's above mentioned evidence will have on the prosecution case, can be gone into at the final hearing of the appeal. At this stage, in our opinion, the evidence of eye witnesses PW-2 and PW-3 is sufficient to indicate the complicity of the applicant in the crime. The story that the applicant rotated a stick in his defence which might have landed on the deceased is unpalatable. Postmortem notes indicate that there was CLW over frontal region of the scalp and there was fracture of frontal bone. PW-7 Dr. Nalawade who did the postmortem has said that the injuries suffered by the deceased could be caused by an axe. In the AJN 5 circumstances, no bail can be granted to the applicant. Application is rejected. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]