1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.388 OF 2010 IN CRIMINAL APPEAL NO.52 OF 2010 Shail alias Shailesh s/o Bhagwanrao Waman ..APPLICANT VERSUS The State of Maharashtra ..RESPONDENT Mr A.L. Tikale, Advocate for the applicant/accused no.1; Mr S.D. Kaldate, A.P.P. for the respondent. WITH CRIMINAL APPLICATION NO.4461 OF 2009 IN CRIMINAL APPEAL NO.646 OF 2009 Ajit Ashokrao Garje ..APPLICANT VERSUS The State of Maharashtra ..RESPONDENT Mr Satyajit S. Bora, Advocate for the applicant; Mr S.D. Kaldate, A.P.P. for the respondent/accused no.2. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 8th February, 2010 ORAL ORDER (PER SHRIHARI P. DAVARE, J.) 2 These are the two applications preferred by applicants/accused nos.1 & 2 requesting for suspension of substantive sentence and their enlargement of bail during the pendency of their respective appeals. The applicants/accused no.1 & 2 were convicted by learned Additional Sessions Judge, Parbhani by judgment rendered in Sessions Trial No.118 of 2008 on 18.11.2009 and they were sentenced to suffer life imprisonment and to pay a fine of Rs.5000/- each, with default condition for non-payment of fine to undergo S.I. for three months. 2. It is alleged that deceased Shantabai, wife of Shashikant Potdar was working on the post of Project Officer, Child Development Project at Pathri and she was residing in a residential quarters alone. According to the prosecution, the accused were under belief that the victim had brought budget money to her house, and hence although accused thought of committing robbery in her house, but murdered deceased by giving blows with sharp knife during the night intervening between 24.1.2008 and 25.1.2008. During the said incident one of the knives fell down on the ankle of applicant/accused no.1 and serious bleeding injury was caused to him and there was profused bleeding so that the accused were required to leave the said place immediately. 3. On the aforesaid background, learned Counsel for the accused no. 1 canvassed that the prosecution case totally rests upon the circumstantial evidence and the circumstances held against the accused 3 no.1 are - (i) that two injuries were found on his person; (ii) accused gave his fictitious name at Nanded Hospital; (iii) blood trail was found from the place of the incident to the house of accused no.1 and (iv) discovery of the blood stained knife and clothes at the behest of accused no.1. As regards the aforesaid circumstances, the learned Counsel for the accused no.1 submitted that the allegation regarding blood trail found from the place of the incident to the house of accused no.1 cannot be relied upon since P.W.9 Manohar Wadmare has not supported the case of prosecution in that respect. As regards another circumstance of discovery of knife at the instance of the accused no.1, the learned Counsel submitted that accused no.1 was hand-cuffed at the time of the alleged discovery and, therefore, the said discovery is under undue influence and coercion and, therefore, cannot be construed as incriminating against accused no.1. As regards the further circumstance that accused no.1 gave fictitious name in the hospital, the learned Counsel for accused no.1 submitted that Dr. Naidu (P.W.2) could not identify the accused no.1 in the Court and, therefore, the said circumstance also cannot be construed as incriminating against accused no.1. 4. The learned Counsel for accused no.1 further canvassed that first information report was lodged at the belated stage and there is no clinching evidence against accused no.1 to connect him with the alleged crime. Hence the learned Counsel for accused no.1 prayed that the accused no.1 be enlarged on bail during the pendency of the appeal. 4 5. The learned Counsel for the accused no.2 submitted that the only evidence against the accused no.2 is that he took accused no.1 from hospital at Pathri to hospital at Manvat and discovery of knife at the instance of accused no.2 under the memorandum panchnama Exhs.70 and 71, which was discovered from the house of accused no.2 under the roof of the bathroom. In the said context, learned Counsel for accused no.2 submitted that C.A. report Exh.79 discloses the blood group "A" on the clothes, which is blood group of victim as well as accused no.1 as per C.A. reports Exh.46 and 47 and, therefore, it is the contention of accused no.2 that when he shifted accused no.1 from hospital at Pathri to hospital at Manvat, the blood stains of accused no.1 fell on his clothes. In the said context, learned Counsel for accused no.2 submitted that prosecution has not produced any cogent evidence to establish the presence of accused no.2 on the spot and the alleged discovery of knife at the instance of accused no.2 comes under doldrums since accused no.2 was handcuffed at the said time, and the panch witness turned hostile.. Accordingly, the learned Counsel for accused no.2 submitted that there is no incriminating evidence against accused no.2 and, therefore, he also be enlarged on bail during the pendency of the appeal. 6. The learned A.P.P. opposed both the applications vehemently and supported the judgment and order convicting the accused nos.1 & 2 and 5 sentencing them as aforesaid and submitted that there is clinching incriminating evidence against accused nos.1 & 2 and, therefore, they are not entitled to be released on bail during the pendency of their respective appeals. The learned A.P.P. submitted that the reasoning adopted by learned Trial Court while convicting the applicants is rational and cannot be faulted with. Accordingly, the learned A.P.P. submitted that the present applications bear no substance and same are devoid of any merits and, therefore, same be rejected. 7. We have perused the record and proceedings and also the impugned judgment with the assistance of learned Counsel for applicants/accused no.1 & 2 as well as learned A.P.P. for the State. At the outset, the prosecution has examined inasmuch as 13 witnesses to substantiate the charges levelled against accused nos.1 & 2. P.W.1 Dr. Mudgalkar who performed the post mortem on the dead body of the victim. namely Shantabai gave the cause of death as haemorrhagic shock due to multiple stab wounds on the dead body of deceased. The complaint was lodged by the husband of deceased, namely Mr Shashikant Potdar on 25.1.2008 at about 10.00 a.m. After scrutinizing the ocular and medical evidence on record and after considering the rival submissions advanced by both the learned Counsel for accused nos. 1 & 2, it is apparently clear that the said submissions pertain to re- appreciation of evidence, which cannot be done at this stage. Moreover, after giving anxious consideration to the said submissions, prima facie 6 we feel that there is incriminating evidence against accused nos.1 & 2 and, therefore, we are not inclined to enlarge the accused nos.1 & 2 on bail during the pendency of their respective appeals. 8. In the result, both the applications preferred by accused nos.1 & 2 are sans of merits and, therefore, same deserve to be rejected and same stand rejected accordingly. However, considering the facts and circumstances, we direct that the hearing of both the said appeals be expedited. (SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/criap388.10