{1} Cri. Application No.2306/2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2306 OF 2011 IN CRIMINAL APPEAL NO.275 OF 2011 Haribhau Laxman Sangale & Another APPLICANTS VERSUS The State of Maharashtra RESPONDENT ....... Mrs.Sadhana S.Jadhav, Advocate for applicants Mr. S.K.Tambe, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 20 th July 2011 PER COURT: 1. By this application, the applicants / original accused No.1 and 5, seek suspension of the substantive sentence of imprisonment for life and their enlargement on bail, pending the decision of this appeal. 2. The applicants stand convicted for an offence punishable u/s 302 of the Indian Penal Code on the allegations {2} Cri. Application No.2306/2011 that the applicants had committed murder of Narayan. The quarrel arose on account of loading and unloading of the cargo, which was placed in the tempo, by PW-1 Dnyaneshwar and the accused. Applicant No.1 Haribhau / original accused No.1, is allege to have wielded a spade and is alleged to have struck the deceased on the head while applicant Bhimrao / original accused No.5, is alleged to have caught the hands of Narayan. Trial court, upon appreciating the evidence, convicted and sentenced both the applicants for an offence punishable u/s 302 r/w 34 of the Indian Penal Code along with other sections of the Indian Penal Code. 3. We have heard Mrs.Jadhav, learned counsel for the applicants, who has urged before us that Haribhau is alleged to have wielded butt end of the spade and consequently an offence punishable u/s 302 of the Indian Penal Code would not be made out. In respect of applicant Bhimrao, it is urged by the learned counsel for the applicants that there is nothing on record to indicate that applicant Bhimrao had shared the common intention of Haribhu to commit offence. Learned APP has supported the findings arrived at by the trial court. 4. In so far as Haribhau is concerned, we find that a strong prima facie case has been made out against Haribhau. Mrs. Jadhav, learned counsel for the applicants states on instructions that prayer for suspension of sentence and enlargement of Haribhua on bail, is not pressed by the applicants. Consequently, {3} Cri. Application No.2306/2011 application filed by Haribhau is dismissed as not pressed. In respect of Bhimrao, we find that Bhimrao was on bail during the trial. Apart from that Bhimrao is alleged to have caught hands of deceased Narayan. Prima facie, we find that there is nothing on record to indicate that the act of catching hands of the deceased was a consequence of Bhimrao sharing the common intention of Haribhau to commit the offence. In that light of the matter, therefore, according to us, accused Bhimrao would be entitled to be released on bail. 5. Consequently, this application is partly allowed. Application stands dismissed in so far as prayer of Haribhau is concerned. Substantive sentence of imprisonment awarded to applicant Bhimrao stands suspended and accused Bhimrao is released on bail on his furnishing PR bond in the sum of Rs. 15,000/- and one surety in the like amount to the satisfaction of the trial court. Since we are already hearing criminal appeals of the year 2010/2011, we expedite hearing of this appeal. The application is partly allowed as indicated above. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapln2306-11 {4} Cri. Application No.2306/2011