1 Criminal Appl. No.3805 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3805 OF 2010 IN CRIMINAL APPEAL NO.362 OF 2010 1. Bhausaheb S/o.Ankush Gade, Age-23 years, Occu-Agril. and Business, 2. Pintu S/o.Ankush Gade, Age-28 years, Occu-Agril. and Business, Both are R/o.Sonari, Tq. Paranda, Dist. Osmanabad. APPLICANTS VERSUS The State of Maharashtra RESPONDENT Mr.S.J.Salunkhe, learned counsel for the applicants. Mr.D.R.Kale, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 06/12/2010 PER COURT : 1. This is an application filed by the applicants seeking suspension of their substantive sentence of imprisonment and their enlargement on bail pending the decision of this appeal. The applicants stand convicted for an offence punishable u/s. 302 of The 2 Criminal Appl. No.3805 of 2010 IPC on the ground that the applicants had committed murder of deceased Raosaheb on 30/09/2009 at about 9.30 p.m. The prosecution relied upon the evidence of prosecution witnesses no.1, 2 and 3 as eye witnesses to the incident and also relied upon the circumstantial evidence relating to the discovery of the weapon of crime as well as the blood stained clothes of applicant no.1. The report of the Chemical Analyser in no uncertain terms points out that the clothes and the weapon discovered at the behest of the applicants were found stained with the blood group matching that of the deceased. 2. Shri.S.J.Salunkhe, learned counsel for the applicants has urged before us that the evidence of prosecution witnesses no.1 to 3 ought not to have been accepted by the Trial Court as prosecution witnesses no.1 to 3 are either convicts or the persons against whom criminal cases are pending. It is also urged before us that the conduct of the eye witnesses is not of either attempting to intervene or to take such immediate measures as are expected of a prudent person, which would render the evidence of prosecution witnesses no. 1 to 3 as un-reliable. It is also urged before us by the learned counsel for applicants that P.W.No.1 has stated that applicant no.2 had exhorted applicant no.1 not to leave the deceased alive, and P.W.No.2 and 3 do not speak about the said exhortations by applicant no.2 to applicant no.1. It is therefore urged before us that in any event applicant no.2 would be entitled to be released on bail 3 Criminal Appl. No.3805 of 2010 pending the decision of the appeal, as there is no evidence against applicant no.2. Reliance is placed by the learned counsel for the applicants on the decision of the Supreme Court in Pandurang and others versus State of Hyderabad, AIR 1955 SC 216. The learned A.P.P. has opposed the aforesaid application and has stated before us that none of the applicants were on bail during the trial and that there is prima facie evidence against the applicants in respect of their involvement in the crime. 3. The evidence of prosecution witnesses no.1 to 3 discloses that applicant no.1 had stabbed the deceased. The deceased had sustained as many as 15 injuries. The overact attributed to applicant no.2 is that he had caught the deceased and had thus facilitated the applicant no.1 in inflicting the stab injuries. Though P.W.No.1, in his evidence had stated that applicant no.2 had exhorted applicant no.1 to murder the deceased, yet the exhortations are not repeated by prosecution witness no.2 and 3 who have been examined as eye witnesses. However, the evidence of the eye witnesses is consistent on this aspect that the deceased was hold by applicant no. 2 and applicant no.1 had stabbed the deceased. The applicant no.2 has been convicted with the aid of Section 34 as the Trial Court has come to the conclusion that the applicant no.2 had shared the common intention of applicant no.1 to commit the murder of deceased. It is urged by the learned counsel for the applicants that there was no motive for applicant no.2 to have participated in the 4 Criminal Appl. No.3805 of 2010 incident and further that the applicant has aged parents to support and has a daughter aged 7 months. 4. In the light of the existence of strong prima facie case against both the applicants, we are not inclined to allow the present application. The submissions advanced before us by the learned counsel for the applicants are pertains to re-appreciation of evidence, which can not be done at this stage. The question as to whether all the eye witnesses are required to disbelieve or the question whether the overact attributed to applicant no.2 is require to be disbelieved, are all matters which would be considered at the time of final hearing of the appeal. Suffice it to state that in the light of the strong prima facie case, we are not inclined to allow the present application. 5. We, therefore, dismiss this application. However, hearing of the appeal is expedited. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/DEC. 2010/cri.appl.3805-10