1 Cri Application No. 5153 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 5153 OF 2010 in Criminal Appeal No. 468 of 2010 1. Sunil s/o Madhukarrao Nagargoje, Aged 32 years, Occupation Business and Agri., Resident of Garkheda Area, Aurangabad, Taluka and District Aurangabad. 2. Madhukar s/o Dhondiram Nagargoje, Aged 59 years, Occupation Pensioner, Resident of Nagdara, Taluka Parali, District Beed. 3. Ashok s/o Rustum Kendre, Aged 31 years, Occupation Private Service, Resident of Dongar Pimpla, Taluka Ambajogai, District Beed. Applicants V E R S U S The State of Maharashtra Respondent Mr. N.L. Jadhav, Advocate for the applicants Mr. S.G. Nandedkar, APP for the respondent / State Mr. A.M. Gaikwad, Advocate for the complainant / assisting to APP CORAM : A.V. NIRGUDE, J. DATED : 15th December, 2010 ORAL ORDER 1. The three appellants are now seeking bail pending the disposal of the Criminal Appeal, which was admitted on 10th December, 2010. The appellants are convicted for the offence punishable under Section 307 read with 34 of the Indian Penal Code and are sentenced to suffer five years of rigorous imprisonment and to pay fine of Rs. 3,000/- each with a default clause. 2. I went through the record of the trial Court and found that this is an exceptional case where though the appellants are sentenced to suffer rigorous imprisonment of five years, a short term sentence, yet 2 Cri Application No. 5153 of 2010 this is not a fit case to release the appellants on bail pending the disposal of the appeal. I am also of the view that the appeal of this nature should be taken up for hearing immediately. 3. The incident in question took place on 13th November, 2007, at about 01.25 p.m. in front of the house of the appellants No. 1 and 2. The injured allegedly had certain transaction with the appellant No.1 and demanded certain document from him on that day prior to the incident elsewhere. The appellant No. 1 then brought the injured in his car to his house on the pretext that the document was kept in his house. It is alleged that the appellant No. 1 got down from the Car in front of his house asking the injured to wait in the Car. It is further alleged that the appellants then came out of the house with weapons in their hands and attacked the injured. This incident took place at broad day light and there is at least one eye witness to the incident besides the injured himself. The prosecution case further reveals that soon after the attack, the injured rushed towards B & C Office, where he met the prosecution witness No. 6, who took him to Dr. Gaikwad’s Hospital. It is further revealed that Dr. Gaikwad in turn called up Dr. Wange – prosecution witness No. 10 and gave an SOS to him. Dr. Wange on receiving this information, rushed to the Hospital of Dr. Gaikwad and then arranged to get the injured admitted in his own hospital. He immediately noted down the nature of injuries sustained by the injured and rushed him to the Operation Threatre. Dr. Wange then got busy with the surgical operation for about three hours and thereafter the injured was taken to Intensive Care Unit of his hospital. In the meantime, at about 03.00 p.m., prosecution witness No. 6 informed the incident to the police and the police registered the offence. On the next day morning, the police recorded statement of the injured. The learned Judge of the lower Court believed the prosecution case, and as said above, convicted the appellants. The lapse in the 3 Cri Application No. 5153 of 2010 prosecution case found by the trial Court was that the prosecution witness No. 8 who deposed to have witnessed the incident, was not believed. 4. The learned Advocate appearing for the appellants asserted that the incident could not have take place as stated at 01.25 p.m., but probably took place 2-3 hours prior thereto and that the appellants were falsely implicated. In order to substantive this submission, he pointed out certain admission given by Dr. Wange in his cross- examination that the age of injury could be 6 hours to 12 hours. He also placed reliance on the deposition of the Investigation Officer that the Investigation Officer admitted in the cross-examination that the injured was taken to the hospital of Dr. Gaikwad at about 11.00 a.m. However, after going through the cross-examination part of the Investigation Officer’s deposition, I realized that the manner in which the above mentioned admission is brought on record, is rather dubious and questionable. In any case, the Investigation Officer is not an eye witness for the fact as to when the injured taken to Dr. Gaikwad’s hospital. I am aware that the Supreme Court in the case of Bhagwan Rama Shinde Gosai and others v. State of Gujrat (1999) 4 SCC 421) held that as a normal rule, when a person is convicted and sentenced to a short term imprisonment during the pendency of his appeal, he should be released on bail suspending the sentence. But, the Supreme Court also indicated that there could be exceptional cases where bail could be refused and the appeal could be heard expeditiously. 5. The incident of assault had taken place in 2007. The trial was over recently on 7th December, 2010, and since the parties belonged to rival political groups, I think that it could be unsafe to release the appellants on bail. Instead, I am directing the office to place the appeal immediately for final hearing. I am also directing the office to prepare the paper-book etc within a period of three weeks so that the 4 Cri Application No. 5153 of 2010 appeal would be heard immediately. The hearing of the appeal is expedited. The application for bail stands rejected. Parties to act upon the copy duly authenticated by Shirestedar of this Court. ( A.V. NIRGUDE, J. ) SRM/criapln/5153/10/ok