1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 3783 Of 2009 IN CRIMINAL APPEAL NO. 553 OF 2009 Usman Ali Yusuf Ali ...Applicant VERSUS The State of Maharashtra, through P.I. Taluka Police Station, Bhusawal, Dist. Jalgaon ...Respondent ..... Miss Monika Purnapatre, advocate holding for Shri Swapnil S.Patil, advocate for the applicant ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 18.01.2010 ORAL ORDER : (Per Shrihari P.Davare, J.) 1 Perused. Heard learned respective counsel for the parties. 2 2 By the present application, the applicant (original accused no.1) seeks for suspension of substantive sentence awarded to him by the learned Additional Sessions Judge, Jalgaon in Sessions Case No. 193 of 2005 , by judgment and order rendered on 16.6.2009 and for enlargement on bail during the pendency of the appeal. 3 The applicant/accused no.1 was charged for the offences punishable under Sections 302, 307 r/w Section 34 of the Indian Penal Code and also under Sections 4 and 25 of the Arms Act and under Section 135 of the Bombay Police Act, along with accused no.2 Sanjay Suralkar and the applicant came to be convicted for the offence punishable under Sections 302 and 326 of the Indian Penal Code and was sentenced to suffer imprisonment for life and to pay a fine of Rs. One thousand with default condition of payment of fine to undergo R.I. for five days; and also to suffer R.I. For 4 years and to pay fine of Rs. One thousand with default condition of payment of fine to undergo R.I. for five days, respectively. 4 It is alleged that the incident occurred during the intervening night of 14.7.2005 and 15.7.2005 in front of hotel Bonde out of Bhusawal city at about 2.00 a.m. and it is also 3 alleged that during the occurrence of the incident, the applicant herein assaulted the victim Vijay Sonar by means of knife on his thigh and also assaulted another victim Pravin Ahirrao on his stomach and it is further alleged that accused no.2 Sanju assaulted by means of iron rod upon the right face and left thigh of victim Vikas Sonar. Both the said victims, namely Pravin Ahirrao and Vijay Sonar succumbed to the injuries. 5 To substantiate the charges levelled against the applicant/appellants, the prosecution examined in as much as 18 witnesses. The learned counsel for the applicant urged that there is direct evidence of only one eye witness i.e. PW1 Vikas and the circumstantial evidence like recovery of knife and blood stained clothes of applicant is not reliable and there is variance between the ocular evidence and medical evidence. It is also submitted that although the applicant was not knowing to the victims, no identification parade was conducted. Hence, the learned counsel for the applicant urged that the findings recorded by the learned Additional Sessions Judge are incorrect, and therefore, the applicant is entitled to be enlarged on bail. 6 Learned A.P.P. opposed the present application and countered the argument canvassed by the learned counsel for the 4 applicant and submitted that PW1 i.e. eye witness namely Vikas Sonar, who is the complainant in the present case, was also injured during the occurrence of the incident and his testimony was held to be reliable by the learned Trial Judge. Learned A.P.P. further submitted that the circumstantial evidence adduced by the prosecution corroborates the testimony of said eye witness Vikas Sonar, which consequently connects the applicant with the crime, and therefore, it is submitted that the applicant is not entitled to be enlarged on bail. Learned A.P.P. also canvassed that the applicant was not on bail during the pendency of the trial and the said aspect also cannot be overlooked. 7 We have perused the R. and Ps. which was made available to us for perusal purpose and we have also heard the submissions advanced by the learned counsel for the parties anxiously and considering the evidence on record and also submissions advanced by the learned counsel for the parties, we are of the considered view that the submissions advanced by the learned counsel for the applicant is a matter of appreciation of evidence, which cannot be done at this stage. Besides that, prima facie, we feel that there is evidence against the applicant to connect him with the alleged crime, as well as the applicant was not on bail during the pendency of the trial, and therefore, we are 5 of the view that the applicant is not entitled to be enlarged on bail, and therefore, present application deserves to be rejected and same stands rejected accordingly. (SHRIHARI P. DAVARE, J.) (P.V.HARDAS, J.) dbm/crap3783.09