1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.1043 OF 2009 IN CRIMINAL APPEAL NO.416 OF 2008 Avinash Vasant Devkar .... Applicant Vs. State of Maharashtra .... Respondent Shri Rahul Arote i/b Shri S.R. Pasbola for the Applicant. Ms P.H. Kantharia, APP, for the State. CORAM: J.N. PATEL & A.A. SAYED, JJ. DATED: DECEMBER 08, 2009 P.C: 1. The applicant was prosecuted along with others for having committed offences under Sections 302 and 324 r/w Section 34 of the Indian Penal Code along with Sections 4 and 25 of the Arms Act. It was the prosecution case that the complainant Deepak Rajkumar Sharma along with his friends was having liquor at Deepa Bar. On the adjoining table one Amol Devkar, brother of the applicant, and his friends were consuming liquor. After some 2 time, Amol Devkar along with his friends left the bar but returned and abused Santosh Shinde, who is one of the friends of the complainant. The complainant intervened and separated them and thereafter when they went to Ujwala Paan Shop to have cigarette, they saw Amol Devkar who immediately left the spot but returned back accompanied by Avinash Devkar, i.e., the applicant and others. Thereafter, the applicant assaulted the complainant Deepak Rajkumar Sharma with a sword on his back whereas Santosh Shinde was assaulted with a sword by the brother of the applicant. This is how the applicant along with others came to be charge-sheeted and prosecuted, as stated above. 2. The learned counsel appearing for the applicant submits that the evidence of the complainant if examined, it clearly shows that he has falsely implicated the applicant as in his evidence he has specifically stated that the applicant Avinash Devkar assaulted him on his back with a sword but the prosecution failed to lead any medical evidence to corroborate the evidence of the complainant. In his evidence, Dr. Vikesh Kantilal Mutha, DW-2, the Medical Officer who had examined and treated the complainant Deepak Rajkumar Sharma 3 has deposed that the complainant Deepak Sharma was brought to the hospital by relatives and friends and they narrated the history of presence of injuries on his body due to skidding from motorcycle at about 10:15 p.m. and that the place of the accident was Akurdi and that when Dr. Mutha examined him, he did not not find any injury on his back. 3. The learned APP says that the applicant/accused along with his friends have committed the murder of Santosh Shinde and have also assaulted the complainant Deepak Rajkumar Sharma. The presence and participation of the applicant has been established and, therefore, this is not a case where the accused deserves to be released on bail by suspending his sentence. 4. We have gone through the evidence on record and prima facie we find that the case of applicant/accused can be considered for suspension of sentence and he can be released on bail. As the complainant who is the only witness having implicated the applicant has specifically deposed to the effect that the applicant had assaulted him with a sword on his back, but as the report submitted by the 4 learned counsel appearing for the applicant discloses that the injury which is alleged to have been caused by the applicant to the complainant is not corroborated by medical evidence, therefore, we pass the following order: :: ORDER :: The substantive sentence of the applicant is suspended. The applicant is directed to be released on bail on his furnishing P.R. Bond in the sum of Rs.30,000/- with two sureties of Rs.15,000/- each on the condition that he should report to the Pimpri Police Station, Pune on the 4th Monday of every month between 9:00 a.m. to 11:00 a.m. and shall continue to do so while on bail. The application accordingly stands disposed of. (J.N. PATEL, J.) (A.A. SAYED, J.)