(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 2499 of 2011 (In Criminal Appeal No. 297 of 2011) 1. Manmath Baburao Kadam, Age : 29 years, Occupation : Agriculture. 2. Bhagwan Dnyanoba Kadam, Age : 44 years, Occupation : Agriculture. .. Applicants Both R/o. Gawari, (Original accused Taluka & District : Beed. nos.1 & 2) versus The State of Maharashtra. .. Respondent. ....................... Mr. Joydeep Chatterji, Advocate, for the applicants. Smt. Y.M. Kshirsagar, Additional Public Prosecutor, for the respondent. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 26TH JULY 2011 (2) COURT'S ORDER : 1. Heard learned Counsel for the parties. 2. This is an application preferred by the applicants / appellant nos.1 and 2 i.e. original accused nos.1 and 2 seeking bail pending hearing and final disposal of Criminal Appeal No. 297/2011, suspending substantive sentences inflicted upon them. 3. It appears that the applicant nos.1 and 2 faced the trial for the offences punishable under Sections 147, 148, 341, read with Section 149; 307, read with Section 149; 506, read with Section 149 of Indian Penal Code, and under Section 25 of the Arms Act, in Sessions Case No. 76/2009, and were convicted for the offence punishable under Section 307 read with Section 34 of IPC, and sentenced to suffer rigorous imprisonment for 7 years, each, and to pay fine of Rs. 1000/-, each, in default of payment of fine, to suffer further simple imprisonment for six months, and they were also convicted for the offence punishable under Section 341 read with Section 34 of IPC, and sentenced to suffer simple imprisonment for six months, each, as well as, they were convicted for the offence punishable under Section 506 read with Section 34 of IPC, and sentenced to suffer simple imprisonment for six months, each, with a direction that all the substantive sentences were to run concurrently, by way of judgment and (3) order dated 13-6-2011, rendered by the Additional Sessions Judge, Beed. 4. Briefly stated, the prosecution case as unfolded during the trial is that on 18-11-2008, at about 5.30 to 6.00 p.m., Pandurang (PW 1) and Subhash (PW 3) were returning to village Gawari (Taluka & District : Beed) on "Pulser" motorcycle, which was driven by Pandurang (PW 1) and Subhash (PW 3) was pillion rider. When they came near village Gawari, the applicants and one Baburao, Pradeep and Pravin came across the motorcycle and they were armed with sickles and sticks. Applicant no.1 Manmath kicked front wheel of motorcycle, due to which motorcycle fell on the ground, and the said applicant started assaulting Subhash (PW 3) on his head by sickle, while applicant no.2 Bhagwan assaulted Subhash (PW 3) by means of sickle on his head, as well as, applicant no.2 Bhagwan gave assault of sickle on left hand index finger of Subhash (PW 3) and thereby, said finger was broken, whereas applicant no.1 Manmath gave assault on right eye of victim Subhash and thereby he lost eye sight of right eye, and he became unconscious. Blood was oozing from injuries and his clothes were stained with blood, and he was brought in Civil Hospital at Beed, and thereafter he was given treatment in Dunakhe Hospital at Aurangabad, and he was hospitalized for 20 to 21 days. (4) 5. Adv. Mr. Joydeep Chatterji, learned Counsel for the applicants, canvassed that the applicants were on bail during the pendency of trial and there was no grievance by the respondent that they misused the said liberty granted to them. According to the learned Counsel for applicants, although the incident occurred on 18-11-2008, at about 5.30 to 6.00 p.m., FIR came to be lodged on 21-11-2008, at about 9.45 a.m. i.e. after three days of the incident, and statement of victim Subhash was recorded by Police on 10-12-2008 i.e. after about 19 days from the date of loding the FIR. It is also canvassed by the learned Counsel for the applicants that although Police personnel belonging to Kranti Chowk Police Station had approached Pandurang (PW 1) on 19-11-2008 i.e. very next day of the incident and although Pandurang (PW 1) was admitted in the hospital, he did not disclose names of assailants at that time, which creates suspicion in respect of the prosecution theory. It is further submitted by the learned Counsel for the applicants that although weapons were allegedly discovered at the instance of the applicants, the said weapons were not sealed at the time of their seizure which creates suspicion about the consequent C.A. report in that respect. 6. Learned Counsel for the applicants has further canvassed that there are vital contradictions and omissions in the (5) testimonies of Pandurang (PW 1) and Subhash (PW 3), and more particularly, there are vital omissions in the testimony of Subhash (PW 3), in respect of applicant no.2 Bhagwan Kadam, which go to the root of the matter and hampers the case of the prosecution. 7. As regards the medical evidence, learned Counsel for the applicants canvassed that the prosecution has examined two Doctors, namely, Dr. Deepali Harpalkar (PW 5) and Dr. Milind Dunakhe (PW 6) and almost all the injuries described by them, which were allegedly sustained by victim Subhash, are simple injuries except the injury sustained by the victim on his forehead i.e. injury no.1, and injury no.7 i.e. amputation of left hand index finger. However, both the Doctors have admitted that the victim did not give the history of assault and the victim did not disclose names of the assailants while he was admitted in Civil Hospital at Beed, as well as, Dunakhe Hospital at Aurangabad, and the said inaction amounts vital lacuna in the prosecution case. 8. Moreover, learned Counsel for the applicants submitted that the substantive sentence imposed upon the applicants is of 7 years, which is a short term sentence, in view of the judicial pronouncement of the Hon. Apex Court in the case of Kiran Kumar Vs. State of M.P. (2001 AIR SCW 5130). Accordingly, learned Counsel for the applicants urged that the (6) applicants be released on bail during the pendency of appeal. 9. Learned APP Smt. Y.M. Kshirsagar, for the respondent, countered the said arguments and opposed the present application vehemently, and submitted that Pandurang (PW 1) has explained the delay in lodging the FIR satisfactorily, since his father expired and after performing last rites he filed FIR on 21-11-2008 and the said explanation is plausible and convincing explanation. It is further canvassed by the learned APP, that the evidences of Pandurang (PW 1) and Subhash (PW 3) categorically involve the applicants in the crime and implicit reliance is required to be placed on their testimonies and the said material evidence is incriminating against the applicants. She has further canvassed that the sickles were discovered at the instance of the applicants and the same were seized under the memorandum and panchanama, and the C.A. report corroborates the said evidence, and discloses that the said weapons bore the blood of group "B" which pertains to the victim Subhash. It is also canvassed by the learned APP, that victim Subhash lost his eye sight of right eye due to aforesaid assault by the applicants on him and the medical evidence i.e. evidence of Dr. Deepali Harpalkar (PW 5) and Dr. Milind Dunakhe (PW 6) implicitly connects the applicants with the crime. Accordingly, learned APP submitted that the learned trial court has scrutinized and (7) assessed the evidence and convicted and sentenced the applicants properly and there is no glaring defect therein, and hence, the applicants are not entitled to be enlarged on bail during the pendency of appeal, and therefore, learned APP urged that the present Criminal Application, which is devoid of any merits, be dismissed. 10. I have perused the impugned judgment and order dated 13-6-2011, and also Record & Proceedings with the assistance of learned Counsel for the parties, and at the outset, to substantiate the charges levelled against the accused persons, the prosecution has examined as many as 9 witnesses, as mentioned below : (1) Pandurang Rasal (PW 1) - Complainant. (2) Kalyan Sapkal (PW 2) - Panch witness. (3) Subhash Rasal (PW 3) - Victim. (4) Kishor Giram (PW 4) - Panch witness to memorandum of panchanama. (5) Dr. Deepali Harpalkar - Medical Officer. (PW 5) (6) Dr. Milind Dunakhe - Neuro Surgeon / Private Medical (PW 6) Practitioner. (8) (7) Sanjay Lohakare, API - Investigating Officer. (PW 7) (8) Rafiq Ahmed, PHC (PW 8) - Carrier. (9) Krishna Jaibhai, PC (PW 9) - Carrier 11. Having entire survey of the matter, it is apparently clear that the testimonies of Pandurang (PW 1) and Subhash (PW 3) are the material testimonies which pertain to the very occurrence of the incident, and the victim viz. Subhash (PW 3) has categorically stated in his deposition that the applicant no.1 Manmath kicked on the motorcycle and thereby it was fell on the ground, and applicant no.1 Manmath and applicant no.2 Bhagwan assaulted Subhash (PW 3) on head by means of sickle and applicant no.2 Bhagwan gave assault of sickle on his left hand index finger which was broken, whereas applicant no.1 Manmath gave assault on his right eye and thereby he lost his right eye sight, and he became unconscious and blood was oozing from injuries, and he was removed to Civil Hospital at Beed, for medical treatment, and thereafter, he was hospitalized in Dunakhe Hospital at Aurangabad for about 20 - 21 days. However, apparently, during the cross examination of Subhash (PW 3), there appear to be vital omissions in respect of very act of applicant no.2 Bhagwan, and the said omissions appear to have been duly proved by confronting the same to Sanjay (9) Lohakare (PW 7). 12. Considering the medical evidence of Dr. Deepali Harpalkar (PW 5) and Dr. Milind Dunakhe (PW 6), it is apparent that the victim sustained simple injuries except injury no.1 and injury no.7 which were grievous injuries caused to victim Subhash. Moreover, it is also apparent that the victim Subhash lost his eye sight of right eye due to the assault caused by applicant no.1 Manmath by sickle, as well as, left hand index finger of victim Subhash was amputated by way of assault caused by applicant no.2 Bhagwan by sickle, and apparently, as mentioned herein above, the said assault by applicant no.2 Bhagwan amounted to omission in the statement of Subhash (PW 3) before Police and improvement in his testimony before court. 13. Considering the rival submissions advanced by the learned Counsel for the parties, as well as, considering ocular, documentary and medical evidence on record, I am of the view that prima facie there is incriminating evidence against applicant no.1 Manmath, and hence, I am not inclined to accept the submissions advanced by the learned Counsel for the applicants, in respect of applicant no.1 Manmath, and therefore, his application deserves to be rejected, whereas apparently, there is substance in the submission advanced by the learned Counsel for (10) the applicants, in respect of the case of applicant no.2 Bhagwan, and therefore, he deserves to be enlarged on bail during the pendency of appeal, but on imposing certain conditions. 14. In the result, present Criminal Application is partly allowed, in respect of applicant no.2, namely, Bhagwan Dnyanoba Kadam i.e. original accused no.2, and it is directed that the said applicant no.2 Bhagwan be released on bail, on furnishing P.R. Bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand) with one surety in the like amount, before the trial court, pending hearing and final disposal of Criminal Appeal No. 297/2011, suspending substantive sentence imposed upon him, on the condition that the said applicant no.2 Bhagwan shall give attendance before the learned trial court once in a quarter till the disposal of the appeal, and shall not reside in village Gawari (Taluka & District : Beed) till the disposal of the said appeal. However, present Criminal Application to the extent of applicant no.1, Manmath Baburao Kadam, stands dismissed. 15. Record & Proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE bgp/ka2499