1 Cri.A.806.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 806 OF 2011 IN CRIMINAL APPEAL NO.123 OF 2011 1. Vyankati S/o Munjaji Shinde Age : 22 years,Occup.: Agril., 2. Ram S/o Manikrao Talekar, Age : 22 years Occup. Agril.. R/o Both Khandoba Bazar, Parbhani, Ta.& Dist. Parbhani. ...APPLICANTS. VERSUS The State of Maharashtra, ...RESPONDENTS. ... Smt. S.S.Jadhav,Advocate for Applicants. Smt. Y.M.Kshirsagar,A.P.P. for Respondent. ... CORAM: SHRIHARI P.DAVARE, J. DATE : 18TH MARCH, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicants(Original Accused Nos. 1 and 2) seeking 2 Cri.A.806.11 bail, suspending substantive sentence inflicted upon them for the offence punishable under section 307 read with section 34 of the Indian Penal Code, and directing them to suffer rigorous imprisonment for seven years each, and to pay fine amount of Rs.3000/-(Rupees Three Thousand) each, in default of payment of fine to suffer further rigorous imprisonment for three months each, vide judgment and order dated 23rd December, 2009, by the learned Additional Sessions Judge, Parbhani, in Session Case No. 35 of 2008, pending hearing and final disposal of Criminal Appeal No.123 of 2011. 3. It appears that Criminal Appeal No.123 of 2011 preferred by these applicants-appellants has been admitted by this Court, by order dated 03rd March, 2011 and same is pending. 4. Smt. Jadhav, learned counsel for the applicants submits that other co-accused i.e. accused Nos. 3 and 4 have filed Criminal Appeal No.672 of 2009, challenging the aforesaid 3 Cri.A.806.11 conviction and sentence before this Court, which has been admitted, and same is pending. They had also preferred Criminal Application No.4574 of 2009 seeking bail, same was granted by this Court on 19.01.2010. Allegations made against the said co-accused Nos.3 and 4 and the allegations made against the present applicants are also same. Therefore, the learned counsel submits that present applicants deserve to be enlarged on bail, during pendency of the appeal, on the principle of parity. 5. Learned counsel for the applicants further submitted that recovery of weapons from the present applicants has been disbelieved by the learned trial Court. Moreover, seizure panchnama of muddemal has not been believed by the trial Court, as well as it appears that evidence of C.A., is not helpful to the prosecution. It is further observed by the trial Court that spot panchnama has not supported the case of the prosecution. Besides that, the learned counsel for 4 Cri.A.806.11 applicants submits that there are vital omissions and contradictions, which go to the root of the matter and hamper the case of the prosecution. 6. It has also been canvassed by the learned counsel for the applicants that sentence inflicted upon the applicants is for the period of seven years, which is a short term sentence, and there is no likelihood of taking up Criminal Appeal No. 123 of 2011, for final hearing in near future. The learned Counsel relied upon the observations made by the Hon’ble Supreme Court in the case of Kirankumar Vs. State of M.P. reported in 2002-All MR (Cri.)-0-473. Moreover, it is also submitted by the learned counsel, that the applicants were on bail during the pendency of the trial, and have not committed breach of any of the conditions imposed upon them. Hence, learned counsel urged that applicants be enlarged on bail, pending hearing and final disposal of Criminal Appeal No.123 of 2011. 5 Cri.A.806.11 7. Smt. Kshirsagar,learned APP for respondent- State vehemently opposed the present application, by submitting that the learned trial Court has observed in the judgment that there is no reason to disbelieve the informant, as he was pressurized by the accused side to execute a documents and the explanation given by the prosecution about the circumstances, in which the informant executed the documents, is acceptable. 8. Learned APP further pointed out that learned trial Court observed in the judgment that the defence has not brought evidence regarding the plea of alibi to show that accused No.4 was not at Parbhani, at the time of incident because of the order of extradition passed against him, as well as, it was observed that P.W.3 does not say that the accused No.4 assaulted him. However, FIR and deposition of P.W.3 show that accused No.4 was present there, and was saying to kill the informant and, accordingly, common intention of accused is proved. 6 Cri.A.806.11 9. Besides, the learned APP invited my attention to testimony of P.W.4 that the nature of injuries is not important, but the intention to kill the informant is proved by the prosecution. The informant sustained injury CLW on right side of parietal bone to frontal having size 12 X 2 X 1 cms. Accused suddenly and unexpectedly assaulted the informant with dangerous weapons. Thus, the medical evidence shows that the accused attempted to commit murder of the informant, and therefore, the testimony of the informant cannot be discarded. Consequently, the trial Court has observed that the intention and plan of the accused to kill the informant are proved beyond reasonable doubt. The meeting of mind of accused shows that all the accused gathered at a particular place and time with weapons, and assaulted the informant. Accordingly, learned APP urged that applicants are not entitled to release on bail during the pendency of the appeal, since present application bears no substance and same be dismissed. 7 Cri.A.806.11 10. Considering rival submissions, admittedly Accused No.3 Amol Baburao Chandane and Accused No.4 - Maroti S/o Dattarao Bansode alias Pahelwan, have filed Criminal Appeal No.672 pf 2009, which has been admitted by this Court and they had preferred Criminal application for bail bearing No. 4574 of 2009 and same was allowed by this Court on 19.01.2010. The allegations made against accused Nos. 3 and 4, and the allegations made against the present applicants i.e. accused Nos. 1 and 2, in the occurrence of the incident, apparently; appear to be same and conviction and sentence inflicted upon accused Nos. 3 and 4, as well as upon the present applicants are also similar, and therefore, present applicants deserve to be enlarged on bail, pending hearing and final disposal of the appeal, on principle of parity. 11. Moreover, Criminal Appeal bearing No. 123 of 2011, filed by present applicants has been admitted by this Court, by order dated 03.03.2011, and there is no likelihood of taking up the said 8 Cri.A.806.11 appeal for final hearing in near future, and therefore, applicants are entitled to be enlarged on bail during the pendency of the said appeal. Moreover, applicants herein have been convicted under section 307 read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.3000/-(Rupees Three thousand) each, and in default of payment of fine; to suffer further rigorous imprisonment for three months, and it is reported that applicants have deposited fine amount, whereas sentence inflicted upon them appears to be of short term sentence, and relying upon the judicial pronouncement cited supra, by the learned counsel for the applicants, present applicants deserve to be enlarged on bail, pending hearing and final disposal of the appeal. 12. In the result, present application is allowed and it is directed that applicant Nos.1 and 2 be released on bail of in the sum Rs.20,000/-(Rupees Twenty Thousand) each with one 9 Cri.A.806.11 surety in the like amount, by each of them, with further direction that the applicants shall not tamper and/or influence the witnesses of prosecution directly or indirectly. 13. Present Criminal Application stands disposed of, accordingly. 14. Hamdast permitted. Sd/- [SHRIHARI P.DAVARE, J.] MTK