1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 158 OF 2009 IN CRIMINAL APPEAL NO. 403 OF 2009 (Shamrao Fakaru Kinake .v. State of Maharashtra) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. CORAM : A.P. LAVANDE AND PRASANNA B. VARALE, JJ. 25TH NOVEMBER, 2009. Heard Shri N.A. Badar, the learned Counsel for the applicant and Shri S.J. Jichkar, the learned APP for the respondent/State. By the present application, the applicant seeks suspension of sentence and bail. The applicant along with five others has been convicted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. The learned Sessions Judge primarily relied upon the evidence of three witnesses namely PW-1 Narayan Pawar; PW-2 Suresh Kawde; and PW-3 Mukesh Pawar. The learned Judge also relied upon the medical evidence tendered through PW-9 Dr. Satish Gore. The trial Court rejected defence evidence tendered through Naib Tahsildar who was examined to prove the alleged affidavit sworn by PW-1 Narayan Pawar to the effect that he did not know about the murder of deceased Purushottam Nanaji Misewar. The trial Court accepted the version of prosecution case and convicted the applicant along with the other accused for the offence 2 punishable under Section 302 read with Section 149 of the Indian Penal Code. Shri N.A. Badar, the learned Counsel for the applicant submits that PW-1 Narayan Pawar; PW-2 Suresh Kawde and PW-3 Mukesh Pawar cannot be believed for various reasons. Firstly, PW-1 Narayan Pawar had filed affidavit before Tahsildar that he did not know about the incident; insofar as PW-2 Suresh Kawde is concerned, his statement was recorded after 5-6 days and as far as PW-3 Mukesh Pawar is concerned, his statement is full of omissions. The learned Counsel further submitted that the applicant is aged about 70 years and, therefore, this is a fit case for suspension of sentence and grant of bail. Per contra, Shri S.J. Jichkar, the learned APP appearing on behalf of the respondent/State, submitted that there is cogent evidence tendered before the learned trial Court through the evidence of three eye witnesses PW-1 Narayan Pawar; PW-2 Suresh Kawde and PW-3 Mukesh Pawar as well as medical evidence to connect the applicant with the crime. He further submitted that the trial Court has rightly disbelieved the alleged affidavit sworn by PW-1 Narayan Pawar before the Naib Tahsildar. Having considered the rival submissions and having perused the record, we find that no case has been made out for suspension of sentence and grant of bail by the applicant. We find it difficult to reject the evidence of PW-1 Narayan Pawar; PW-2 Suresh Kawde and PW-3 Mukesh Pawar, who have deposed about the murder of deceased committed by the accused including the 3 applicant. We are not inclined to reject the testimonies of PW-2 and PW-3 solely on the ground that their statements were recorded after few days. Insofar as the affidavit, alleged to have been sworn by PW-1 Narayan Pawar to the effect that he did not know about the murder of Purushottam Nanaji Misewar is concerned, we asked Shri Badar, the learned Counsel for the applicant as to how PW-1 the accused came in possession of the said affidavit, but he could not give any satisfactory explanation. In view of the evidence of DW-1 examined by the defence, it is also difficult for us to hold that it was PW-1 Narayan Pawar who had sworn the said affidavit inasmuch as PW-1 in his cross examination has denied swearing of any affidavit. Therefore, the possibility of accused getting false affidavit of PW-1 sworn through some other person cannot be ruled out. In this factual position, we are not inclined to suspend the sentence and grant bail to the applicant although he is aged about 70 years old. The applicant is not entitled for suspension of sentence and bail solely on the ground that he is aged about 70 years old. In view of the above, we are not inclined to suspend the sentence and grant bail to the applicant. Hence, Criminal Application is rejected. JUDGE JUDGE *rrg.