1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1083 OF 2009 IN CRIMINAL APPEAL NO. 978 OF 2009 Rajesh Shrinivas Kuken & Anr. .. Applicants. vs. State of Maharashtra .. Respondent. Ms. Anjali R. Awasti for the applicants. Dr. F.R. Shaikh, APP., for the Respondent/State. CORAM : J. N. PATEL & A. A. SAYED, JJ. DATE : 14TH DECEMBER, 2009 P.C. : Heard. 2. This is an application for suspension of sentence and for being released on bail. 3. The applicants were tried along with one Jitu Rama Chauhan on a charge of having committed murder of Indrajit Singh 2 Surya by the Additional Sessions Judge in Sessions Case No. 664 of 2003 along with 836 of 2004. The Additional Sessions Judge by his judgment and order dated 13.5.2005 held the applicants/appellants along with Jitu Rama Chauhan guilty of having committed murder of Indrajit Singh Surya and sentenced them to suffer rigorous imprisonment for life for having committed offence under section 302 read with 34 I.P.C. and to pay a fine of Rs. 10,000/- each. 4. It is the case of the prosecution that on 13.6.2003 at about 11.30 p.m. the applicants/appellants along with Jitu Rama Chauhan armed with chopper and iron rod entered the dwelling house and murdered Indrajit. The prosecution examined Tabassum the wife of deceased Indrajit and other witnesses. The trial Court found that the prosecution was able to prove that Indrajit Singh died a homicidal death which was caused by applicants-accused and Jitu Rama Chauhan and proceeded to convict them. 5. The learned counsel appearing for the applicants/appellants submits that this Court by order dated 15.6.2006 passed in Criminal Application No. 106 of 2006 has released Jitu Rama Chauhan, one of the accused, on bail. It is submitted that the applicants/appellants having roots in the society, they are not likely to abscond if their sentence is suspended and they are released on bail on the same terms and conditions as that of Jitu Rama Chauhan 3 as their case is similar to the said Jitu Rama Chauhan. 6. The learned APP submits that the case of the applicants/appellants can be distinguished from that of Jitu Rama Chauhan as the prosecution has established its case against them and the witness has identified the applicants/appellants as the persons who have attacked the deceased. It is pointed out to us that PW-1 Mrs. Tabassum Indrajit Singh Surya has assigned specific role to the applicants/appellants. She has stated that Raju Kukan and Menda Babu rushed and they attacked her husband despite her plea to spare the life of her husband, she was slapped and made to sit in a corner of her room and therefore, their application deserves to be dismissed. 7. We have gone through the deposition of PW-1 Mrs. Tabassum Indrajit Singh Surya. Unfortunately for the prosecution, this witness has not supported the prosecution and was declared hostile as the trial court permitted the learned Public Prosecutor to cross-examine the witness under Section 154 of the Evidence Act. This witness has specifically stated that on the date of the incident she was in a frightened state of mind and she has wrongly named the persons identified as the appellants-accused and Jitu Rama Chauhan. It is on this ground only this Court had suspended the sentence of Jitu Rama Chauhan and released him on bail. 4 Therefore, we are inclined to release the appellants/applicants on the same terms and conditions. (i) The substantive sentence of the applicants/appellants (original accused nos. 1 and 2) is suspended. They are ordered to be released on bail on furnishing P.R. Bond of Rs. 10,000/- each with one solvent surety in the like amount. (2) The applicants/appellants shall attend D.N.Nagar Police station once in a month in the first week of month between 4.00 p.m. and 6.00 p.m. till the disposal of the appeal. (3) They shall not commit any cognizable offence while on bail. 8. The application stands disposed of accordingly. ( J. N. PATEL, J.) ( A. A. SAYED, J.)