Cri.Application No.4844/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4844 OF 2010 IN CRIMINAL APPEAL NO.453 OF 2010 1. Ashok s/o Dnyanoba Dambale Age 31 years, Occu.Labourer, 2. Bharti w/o Ashok Dambale, Age 26 years, Occu.Household, Both R/o Kundi, Taluka Selu, District Parbhani ..APPLICANTS/ APPELLANTS (Orig.Accused 1 & 2) Versus - The State of Maharashtra ..RESPONDENT Mr S.S.Shete, Advocate for applicants/appellants Mr N.H.Borade, A.P.P. for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 2nd February 2011 PER COURT 1. By this application the applicants/original accused 1 and 2 seek suspension of their substantive sentence of imprisonment and their enlargement on bail pending the decision of the appeal. Undisputedly, both the applicants were not on bail during trial. 2. The applicants stand convicted by the Additional Sessions Judge-1, Jalna by judgment dated 28.9.2010 in Sessions Case No.70 of 2009 on the allegations that the applicants had committed murder of one Cri.Application No.4844/2010 2 Dambale. The trial Court at paragraph 59 of the judgment has enlisted the circumstances, which stand proved against the applicants. It appears that the prosecution heavily relied upon the circumstance that the deceased was last seen alive in the company of the accused i.e. on 5.2.2009. Prosecution has examined P.W.1 Sidharth, P.W.4 Sitabai, P.W.6 Manik, P.W.7 Jivan and P.W.8 Bajirao. Trial Court further came to the conclusion that though the dead body of deceased Kisan was recovered from the Well on 10.2.2009, the time of death as stated by the Medical Officer reduced the time gap between the period of time when the deceased was in the company of the accused and his death. The trial Court, therefore, came to the conclusion that the circumstance was proved against the applicants and the circumstance clearly implicated the accused in the commission of the said offence. It appears that the accused had taken a defence that they had been falsely implicated. No explanation was forthcoming from the accused in respect of the whereabouts of the deceased though the prosecution evidence in terms established that deceased was last seen alive in the company of the accused. The trial Court accordingly convicted and sentenced the applicants. 3. We have heard Mr S.S.Shete, learned Counsel for the applicants and the learned Assistant Public Prosecutor for the State. It is urged by Mr Shete, learned Counsel for the applicants that the evidence of last Cri.Application No.4844/2010 3 seen is extremely weak and does not establish the offence against the accused beyond reasonable doubt. Further it is the contention that since the body of deceased Kisan was decomposed, the Medical Officer could not have with any degree of certainty opined about the time of death or the infliction of the injuries. The learned Counsel further urged before us that it is a case where apparently accused had been falsely implicated on account of a civil dispute pending between the deceased and the applicants. The learned Assistant Public Prosecutor has supported the findings recorded by the trial Court. 4. The submissions advanced before us by the learned Counsel for the applicants pertain to reappreciation of evidence, which cannot be done at this stage. Suffice it to state that the trial Court after appreciating the evidence has come to the conclusion that the offence has been proved against the applicants. We have perused the findings recorded by the trial Court as well as the evidence of the witnesses. At this stage, we find that a strong prima facie case has been made out for rejecting the application filed by the present applicants. However, since applicant No.2 is a lady and though she was not on bail, we are inclined to allow her plea for suspension of the sentence and enlargement on bail pending the decision of the appeal. Cri.Application No.4844/2010 4 5. In the result, therefore, Criminal Application No.4844 of 2010 is partly allowed. The application stands dismissed insofar as the prayer for suspension of sentence and enlargement on bail of applicant No.1 is concerned. The application is allowed in respect of the prayer of applicant No.2 for suspension of her sentence and enlargement on bail. Accordingly, the substantive sentence of imprisonment of applicant No.2 stands suspended and the applicant No.2 - Bharti w/o Ashok Dambale shall be released on bail, pending the decision of the appeal, on applicant No.2 executing a P.R.bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the trial Court. Applicant No.2 shall attend the Police Station at Selu once in three months on first Saturday till the appeal is decided. 6. Mr Shete, learned Counsel further requests that the applicants be permitted to file private paper-book. We see no reason to deny the said request and accordingly, we permit the applicants to file private paper- book. Private paper-book be filed within four weeks from today. On the private paper-book being filed the appeal be listed for hearing. ( A.V. POTDAR, J. ) ( P.V. HARDAS, J.) (vvr/4844.10criappln) Cri.Application No.4844/2010 5