1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. C.A. Nos. 3865/2007, 115/2008 and 433/2008 Shankar s/o Bhagwan Ingle and others Vs. State of Maharashtra Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Mr. M. M. Agnihotri, Adv. with Adv. S Zoting for the applicants. Mr. Mirza, A. P.P. for the respondent. CORAM : A.P. LAVANDE AND A.B.CHAUDHARI, JJ. Order Reserved on : 19.3.2008 Order Pronounced on : 27.3.2008 Heard Mr. Agnihotri, learned counsel for the applicants and Mr. Mirza, learned A. P. P. for the respondent in all the applications. The applicants in all the above applications are accused in Sessions Trial No. 7/2002 before the Additional Sessions Judge, Buldana and have been convicted and sentenced for having committed offences punishable under Section 302 read with Section 149, 324 read with Sections 149 of the Indian Penal Code and Sections 147 and 148 of the Indian Penal Code. By these applications, the applicants seek suspension of substantive sentences and bail. The applicants along with other three accused, who have been acquitted were prosecuted for having 2 committed offences punishable under Sections 147, 148, 324 and 302 read with Section 149 of the Indian Penal Code. According to the prosecution, on 26.10.2000 at about 8.00 p. m. Arun Chavan, Sk. Rahim Sk. Husain and Gajanan Chavan were going to Shelgaon Bazar on motorcycle. When they were passing through Boudhawada locality, where the applicants reside, near the house of Bashir Kasar - the accused no.1 Kadu Ingle, accused no.2 Shankar Ingle and accused no.3 Dinkar Ingle suddenly came there, pulled Arun Chavan from the motorcycle and started assaulting him with sticks, iron rods and axes in their hands. Sk. Rahim and Gajanan fell on the ground and they tried to persuade the three accused not to assault Arun. When the information about the assault was given to the members of Nina Mahajan group, Kisan Rupsingh Chavan (deceased) Manohar Chavan, Madhukar Chavan, Purushottam Solanke, Nina Chavan, Ulhas Chavan and Narayan Chavan went to the scene of offence within 10 to 15 minutes. At the same time, remaining accused reached there and started assaulting the above named persons with sticks, iron rods and axes in their hands. In this incident, deceased Kisan Manohar Chavan, Purushottam Solanke, Madhukar Chavan, Ulhas Chavan and Narayan Chavan received injuries. They were taken to Police Station, Dhamangaon-Badhe from where they were sent to Primary Health Centre, Dhamangaon- 3 Badhe. Arun Chavan lodged report at 9.45 p. m. Kisan Chavan was also sent to Cottage Hospital, Malkapur where he expired on 6.11.2000. In the trial against 13 accused, the prosecution examined 18 witnesses and produced several documents. The trial Court, upon appreciation of the evidence led by the prosecution, held the applicants guilty for offences charged. Mr. Agnihotri, learned counsel for the applicants submitted that no offence under Section 302 read with Section 149 of the Indian Penal Code has been made out against the applicants and the trial Court has wrongly convicted the applicants for offence of murder with the aid of Section 149 of the Indian Penal Code. According to Mr. Agnihotri, deceased in his dying declaration has only attributed role to the accused nos. 1, 2 and 5 and, therefore, conviction of all the accused with the aid of Section 149 of the Indian Penal Code is not sustainable in law. He further submitted that there are contradictions and omissions on the vital aspects of the testimonies of the prosecution witnesses which clearly throw doubt on the prosecution case. He further invited our attention to the fact that although alleged assault was on 26.10.2000, deceased Kisan died on 6.11.2000. Mr. Agnihotri, therefore, submitted that the applicant cannot be held liable for causing injuries to deceased Kisan and causing his death. He further submitted that after the assault although initially 4 deceased Kisan was admitted in Cottage Hospital, Malkapur thereafter deceased was shifted to private hospital and the prosecution has not led evidence as to what treatment was given to deceased Kisan while he was in private hospital. Lastly, he submitted that all the applicants were on bail pending the trial and they did not misuse the liberty granted to them. Mr. Agnihotri submitted that this is a fit case in which substantive sentences imposed on the applicants deserve to be suspended and applicants released on bail. Per contra, Mr. Mirza, learned A.P.P. for the respondent submitted that the presence of the accused on the spot as well as their participation in the crime has been clearly established by the prosecution. He further submitted that the medical evidence clearly establishes that deceased Kisan sustained injuries which could have been caused by the weapons in the hands of the accused and the same were sufficient in the ordinary course of nature to cause death of Kisan. Insofar as the dying declaration of the deceased is concerned, Mr. Mirza submitted that merely because deceased has attributed role only to the three accused, by itself, is not sufficient to exonerate the other accused inasmuch as the evidence on record establishes common object on the part of all the accused to cause injuries to deceased Kisan which were sufficient in the ordinary course of nature to cause his death. 5 Mr. Mirza then urged that merely the applicants were on bail pending trial, by itself, is not sufficient to suspend the substantive sentences imposed on the applicants inasmuch as the consideration for grant of bail during trial and post conviction are materially different. We have considered the submissions made by learned counsel for the applicants and learned A. P. P. for the respondent and perused the records. Upon perusal of the records, we do not find any patent illegality having been committed by the trial Court in convicting all the applicants for offences for which they have been convicted and sentenced. In our opinion, the prosecution evidence clearly establishes common object on the part of all the applicants to cause injuries to deceased Kisan and that the said injuries were sufficient in the ordinary course of nature to cause his death. Insofar as dying declaration given by deceased Kisan is concerned, he has implicated only three accused namely accused no.1, 2 and 5 as the aggressors. This fact is not sufficient to exonerate the other accused, at this stage, inasmuch as the trial Court has given cogent reasons to hold other accused liable with the aid of Section 149 of the Indian Penal Code. The fact that deceased was treated in private hospital for some time and he died on 6.11.2000, by itself, is not sufficient to exonerate the accused for offence of 6 murder with the aid of Section 149 of the Indian Penal Code. We also find merit in the submission of Mr. Mirza that the mere fact that applicants were on bail pending the trial, by itself, is not sufficient to grant substantive sentences since the applicants have been convicted for offences punishable under Sections 302 of the Indian Penal Code and consideration for grant of bail pending trial and post-conviction are materially different as has been laid down by the Apex Court in catena of the decisions. In our opinion, the evidence on record establishes beyond reasonable doubt common object on the part of all the applicants to cause murder of deceased Kisan. For the reasons aforesaid, we find no merit in all the applications. Consequently, the applications are dismissed. Needless to mention that the observations made above have been made for limited purpose of disposal of the applications for suspension of sentences and grant of bail. JUDGE JUDGE MLA