1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.4465 OF 2009 Shrawan s/o Dagdu Pawar ..APPLICANT VERSUS The State of Maharashtra ..RESPONDENT Smt. S.S. Jadhav, Advocate for the applicant; Mr K.S. Patil, A.P.P. for the respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 2nd February, 2010 ORAL ORDER (PER SHRIHARI P. DAVARE, J.) Heard learned Counsel for the parties. 2. By the present application the applicant/original accused no.2 prays for suspension of substantive sentence and his enlargement on bail during the pendency of the appeal. 3. The applicant/original accused no.2 stands convicted for the offence punishable under section 302 of the Indian Penal Code and was sentenced to suffer life imprisonment and to pay a fine of Rs.5,000/-, with 2 default condition to suffer R.I. for one year and was also convicted for offence punishable under section 324 read with sec.34 of the Indian Penal Code and was sentenced to suffer R.I. for three years and to pay a fine of Rs.1,000/-, with default condition to suffer R.I. for six months by the judgment and order rendered by learned District Judge-1 & Additional Sessions Judge, Shrirampur in sessions Case No.83 of 2006 on 30.10.2009, on the allegations that the applicant/accused no.2 was armed with Gupti and assaulted victim Bhausaheb on 11.9.2006 and thereby the said victim Bhausaheb succumbed to the injuries on the said date. 4. Learned Counsel for the applicant submitted that there was no intention and no premeditation during the scuffle which took place suddenly between the applicant and the victim. The learned Counsel for the applicant also urged that the deceased sustained only single injury during the scuffle which has been reflected in post mortem notes Exh.75. The learned Counsel for the applicant also canvassed that during the said scuffle applicant also sustained injuries which have been disclosed in injury certificate Exh.76. The learned Counsel for the applicant further submitted that there was no previous enmity between the applicant and deceased and quarrel was suddenly erupted and, therefore, no intention to murder the victim can be attributed against the applicant herein. The learned Counsel for the applicant also pointed out that the applicant was on bail during the pendency of the trial and, he has not misused the said 3 liberty. 5. The learned A.P.P. opposed the present application vehemently and submitted that there are three eye-witnesses to the occurrence of the incident, namely P.W.3 Kiran, P.W.4 Sayyed Kabir and P.W.5 Shirish and the witnesses have categorically stated the overt act of the applicant during the occurrence of the incident and accordingly the learned A.P.P. submitted that the testimonies of said three eye-witnesses connect the applicant with the crime. The learned A.P.P. also urged that P.W.9 Dr. Ashok Ingale has stated in his testimony that the injury sustained by the victim was sufficient to cause death in the ordinary course of nature. It is also canvassed by learned A.P.P. that applicant herein had taken the defence in the statement given under section 313 of the Code of Criminal Procedure that there was scuffle between the applicant and the victim and, therefore, presence of the applicant on the spot along with weapon is admitted by him. Accordingly, learned A.P.P. supported the judgment and order rendered by the Trial Court convicting and sentencing the applicant and submitted that present applicant is not entitled to be enlarged on bail during the pendency of the appeal. 6. We have perused the record and proceedings which was made available to us as well as considered the submissions advanced by learned Counsel for the applicant and also learned A.P.P. for the respondent. The prosecution has examined inasmuch as 17 witnesses 4 to substantiate the charges levelled against the applicant and the other accused persons and considering the occular and medical evidence adduced and produced on record and also considering the submissions advanced by learned Counsel for the applicant, we are of the considered view that the submissions advanced by the learned Counsel for the applicant pertain to the re-appreciation of the evidence, which cannot be done at this stage. Moreover, having the comprehensive view of the matter, it is apparent that prima facie there is incriminating evidence against the applicant herein and, therefore, we are not inclined to enlarge the applicant on bail during the pendency of the appeal. In the result, present application is sans of merit and, therefore, same stands rejected. However, the hearing of the appeal be expedited. (SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/criap4465.09