1 (Appa 1545 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1545 OF 2011 IN CRIMINAL APPEAL NO.476 OF 2008 Tanaji Chandanshive ...Applicant Vs. State of Maharashtra ...Respondent ----- Dr.Yug Mohit Chaudhry for Applicant Mr.J.P. Kharge -APP for State ----- CORAM: V.M. KANADE & M.L. TAHALIYANI, JJ. DATE: 15th December, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Applicant and the learned APP for the State. 2. The Applicant is convicted for the offence punishable under section 302 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for life. 3. The prosecution case is that the Applicant along with other co-accused assaulted the deceased and the Trial Court acquitted the other four co-accused. The further case of the prosecution is that there was some 2 (Appa 1545 of 2011) altercations between the Applicant and the deceased and others and after the said incident was over, the Applicant took away the deceased on a motor cycle and after some time, the Applicant along with the accused No.3 brought the deceased on the motor cycle and threw his dead body in the presence of PW-5 and PW-9. The Applicant as well as the accused No.3 also had sustained injuries and the Applicant was admitted in the hospital on 29th December, 2004. It is submitted that the statements of the two witnesses viz. PW-5 and PW-9 were recorded after about 10 to 11 days though the Applicant was arrested on 29th December, 2004 in the hospital itself. It is submitted that since the Applicant is not convicted for the offence punishable under section 304 r/w 34 of the IPC, the burden was on the prosecution to prove that the Applicant had inflicted the said injuries and since there was no evidence to that effect, the Applicant ought to have been acquitted by the Trial Court. It is submitted that in any case, the case would not fall under section 302 of the Indian Penal Code. It is submitted that the Applicant had undergone 7 years of actual imprisonment and if the remissions are taken into consideration, he has already undergone eight years and four months of sentence of imprisonment. 4. The learned APP for the State, however, has 3 (Appa 1545 of 2011) vehemently opposed the said application for bail. He submitted that the Trial Court had taken into consideration the various circumstances on record and had convicted the Applicant and, therefore, this is not a fit case for grant of bail. He, however, submitted that hearing of the appeal may be expedited. 5. In our view, there is much substance in the submissions made by the learned counsel appearing on behalf of the Applicant and the said submissions, therefore, will have to be accepted. It is an admitted position that the statements of the two eye witnesses regarding the circumstance of last seen together are concerned, their statements were recorded after lapse of 10 days and no explanation has been offered either by these witnesses or by the investigating officer as to why there is delay in recording their statements. 6. An iron rod was recovered at the instance of the co- accused, who has been acquitted by the Trial Court. Taking into consideration all these facts and circumstances of the case, in our view, the Applicant deserves to be released on bail. 7. The Applicant is directed to be released on bail on 4 (Appa 1545 of 2011) execution of P.R. Bond in a sum of Rs.10,000/- with one or two sureties in the like amount. He shall, however, report to the concerned police station once in a month. Application for bail is, accordingly, disposed of. (M.L. TAHALIYANI J.) (V.M. KANADE J.)