1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO. 394 OF 2010 IN CRIMINAL APPEAL NO.41 OF 2010 Kawarsingh Kisansingh Bainade & ors. ..APPLICANTS VERSUS The State of Maharashtra ..RESPONDENT Mr S.S. Patil, Advocate for the applicants; Mr K.J. Ghute Patil, A.P.P. for the respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 24th February, 2010 ORAL ORDER (PER SHRIHARI P. DAVARE, J.) 1. This is an application preferred by the applicants (original accused) requesting for suspension of substantive sentence and their enlargement on bail during the pendency of the appeal. The applicants were convicted for the offence punishable under section 302 of the Indian Penal Code and each of them was sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/- each, with default condition of non payment of fine R.I. for two years each and the applicants were also convicted for the offence punishable under section 201 of the Indian 2 Penal Code and each of them was sentenced to suffer R.I. for three years and to pay a fine of Rs.5,000/- , with default condition of non payment of fine to suffer S.I. for six months each and the substantive sentences were to run concurrently , by way of judgment and order rendered by Additional Sessions Judge-4, Aurangabad in Sessions Case No.274 of 2008 on 13.1.2010. It is alleged by the prosecution that the applicants herein assaulted the deceased Kisansing on 31.7.2007 at about 9.00 p.m. during Kanduri function and thereby the victim Kisansing succumbed to the injuries. The prosecution case mainly relied upon two eye-witnesses i.e. P.W.11 Bhagchand and P.W.12 Bhaulal i.e. maternal uncles of the deceased Kisansing as well as the prosecution case relied upon the medical evidence of P.W.10 Dr. Trimbak Shinde and the post mortem notes produced by him. The prosecution has examined in all 15 witnesses, whereas the appellants herein have examined one defence witness, namely D.W.1 Deosing Bainade i.e. brother of appellant no.1 in their defence. 2. On the face of the aforesaid position, the learned Counsel for the applicants urged that the learned Trial Judge has committed error in accepting the theory of motive relying upon the testimony of P.W.1 Ranjanabai solely, without support of the other evidence. It is also submitted that the eye-witnesses i.e. P.W.11 Bhagchand and P.W.12 Bhaulal are the interested witnesses since they are maternal uncles of the victim and they were falsified by the deposition of D.W.1 Deosing, who 3 stated that P.W.11 Bhagchand and P.W.12 Bhaulal were not present during the function of Kanduri. It is also canvassed by the learned Counsel for the applicants that P.W.11 Bhagchand admitted in his deposition that he had no invitation for the said Kanduri function and it is further submitted that the conduct eye-witnesses i.e. P.W.11 Bhagchand and P.W.12 Bhaulal appears to be improbable because they have not made any efforts to save the victim at the time of the alleged assault by the applicants herein. Moreover, it is also submitted that P.W.12 Bhaulal was serving at Shirdi and not residing at Amanatpurwadi and the said aspect also cannot be ignored. Moreover, it is further submitted that it has come in the evidence that there was power cut and darkness at the time of the incident and, therefore, it is highly impossible to witness the occurrence of the incident by P.W.11 Bhagchand and P.W.12 Bhaulal in the light of lantern in the darkness. Learned Counsel for the applicants further urged that P.W.11 Bhagchand and P.W.12 Bhaulal are not the eye-witnesses but they are the got up witnesses, whereas P.W.2 Jeevansing is a chance witness. 3. According to the learned Counsel for the applicants the victim was under the influence of alcohol and he succumbed to the injuries due to accidental fall and P.W.10 Dr. Trimbak Shinde admitted in his cross- examination that injuries sustained by victim can be possible by the fall. Moreover, the learned Counsel for the applicants submitted that evidence of alleged eye-witnesses i.e. P.W.11 Bhagchand and P.W.12 Bhaulal is 4 not in consonance with the medical evidence. Learned Counsel for the applicants further submitted that the statements of the eye-witnesses i.e. P.W.11 Bhagchand and P.W.12 Bhaulal have been recorded at the belated stage and, therefore, their testimonies come under the cloud of suspicion. It is further pointed out that P.W.12 Bhaulal allegedly stated the occurrence of incident before Raju Domale but said Raju Domale has not been examined by the prosecution. Accordingly, the learned Counsel for the applicants urged that the applicants are entitled to be enlarged on bail during the pendency of the appeal. 4. Learned A.P.P. opposed the present application vehemently and submitted that the Trial Court has rightly relied upon the eye-witnesses i.e. P.W.11 Bhagchand and P.W.12 Bhaulal and convicted and sentenced the applicants herein and reasoning adopted by the learned Trial Court cannot be faulted with and no interference is required in the appellate jurisdiction. It is further submitted by learned A.P.P. that ocular evidence adduced by the prosecution as well as the medical evidence adduced and produced by the prosecution are in consonance with each other, which connects the applicants with the crime. 5. With the assistance of the learned Counsel for the applicants and learned A.P.P. for the respondent we have perused the record and proceedings as well as perused the impugned judgment and also considered the submissions advanced by the learned Counsel for the 5 parties anxiously, and prima facie we feel that there is evidence against the applicants to justify the conviction rendered by learned Trial Judge against the applicants herein. Moreover, it is also apparent that the submissions advanced by the learned Counsel for the applicants pertain to the re-appreciation of the evidence, which cannot be done at this stage. Considering the ocular evidence and medical evidence adduced and produced by the prosecution, apparently it appears that there is prima facie case against the applicants to connect them with the crime. 6. In the circumstances, we are not inclined to enlarge the applicants on bail during the pendency of the appeal and, therefore, present application deserves to be dismissed and same stands dismissed accordingly with a liberty to the applicants to file private paper-book and then urge for early hearing. (SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/criap394.10