1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 2770 OF 2009 IN CRIMINAL APPEAL NO. 368 OF 2009 (Anand Tarachand Chindale and others .v. State of Maharashtra) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. CORAM : A.P. LAVANDE AND PRASANNA B. VARALE, JJ. RESERVING DATE : 19TH NOVEMBER, 2009. PRONOUNCING DATE : 30TH NOVEMBER, 2009. Heard Shri A.S. Manohar, the learned Counsel for the applicants and Shri T.A. Mirza, the learned APP for the respondent/State. The present application is moved by the applicants/original accused in the Sessions Trial No. 23/2006. The applicants were charged for the offence punishable under Sections 147, 148, 302 read with Section 149 of the Indian Penal Code. The learned trial Court by judgment and order dated 30.06.2009, convicted the applicants for the offence punishable under Section 302 read with Section 34 of the Indian Penal code and sentenced them to undergo life imprisonment and pay a fine of Rs.500/- each, in default, to suffer further RI for six months each. By the present application, the applicants are seeking the suspension of sentence and bail. Shri A.S. Manohar, the learned Counsel for the applicants submitted that the applicants are involved in 2 the said crime on suspicion. He further submitted that the applicants are of young age. He further submitted that the evidence of the so called eye witnesses ought not to have been relied upon by the learned trial Court as the same is full of omissions. Shri T.A. Mirza, the learned APP for the respondent/State, per contra, submitted that there are eye witnesses to the incident and the involvement of the applicants in the offence of murder is clearly established by the eye witnesses. We have gone through the record with the assistance of the learned Counsel appearing on behalf of the applicant and learned APP. It is the case of the prosecution that in the year 2004, at the time of Diwali Festival, murder of one Amar Chindale and Bablu Bhaganagarkar took place and it was the suspicion of the accused persons that Rajesh and Manoj were involved in the said murder. The accused persons had a grudge in their mind against Rajesh and Manoj and on 09.01.2006, the accused persons made an attack with deadly weapons on Rajesh and Manoj. The prosecution has examined as many as 21 witnesses and also placed documentary evidence in the form of inquest panchnama, CA reports etc. Learned Counsel Shri Manohar submitted that as per the prosecution case, the witnesses saw the incident from Sunita building. The learned Counsel further submitted that the said spot of the incident was not visible from Sunita Building and as such the witnesses ought not to have been relied upon by the learned trial Court. He submitted that in view of the 3 erroneous appreciation of evidence of the learned trial Court, the applicants are entitled to be released on bail. We have perused the record and more particularly the testimonies of the witnesses, namely the informant PW-2 Krishnarao Likhar, PW-3 Raghunath Nakshane, PW-6 Yogesh, PW-9 Ravindra. Perusal of testimony of Krishnarao discloses that on the day of the incident i.e. on 09.01.2006 Krishnarao received information that two persons are lying near the board of Anand Nagar as a result of assault. He immediately rushed to the spot along with his two sons and found that his son Rajesh was lying in the injured condition and Manoj was lying besides him who was stained with blood. On enquiry, Rajesh informed that the applicants/ accused Nos.1, 2 and 3 assaulted him by means of sword and knife. In the cross-examination, Krishnarao denied the suggestion that he made the statement before the Juvenile Court, Yavatmal that when he reached the spot, Manoj was already dead and Rajesh was unconscious. Though the defence has brought certain omissions there is no deviation in the deposition of Krishnarao from the fact that when he reached the spot, Rajesh was conscious and he told that the applicants assaulted him by means of sword and knife. PW-3 Raghunath deposed about the presence of applicant No.3 and the applicant No.3 was asking other accused persons to catch him. This witness also mentions the presence of the applicants on the spot. The defence has brought an omission in respect of applicant No.3 Rajkumar asking the other accused persons to catch Raghunath, but this witness stood firm on the presence and the assault by 4 the applicants/accused. PW-6 and PW-9 also mention the presence of the accused/applicants and also mention that these applicants/accused were armed with weapons. The medical evidence is also placed on record. Though it is submitted by the learned Counsel for the applicants that the spot of the incident is not visible from Sunita Building, the perusal of testimony of PW-6 discloses that there are two gates to Sunita Building; one towards East side and another towards North. Sunita building is facing towards North and the board of Anand Nagar is at a distance of 250 to 300 ft. from North side gate of Sunita Building. From the perusal of the record, we find that there is prima facie material against the applicants/accused. It is well settled that the considerations for grant of bail and post consideration are different. In our opinion, at this stage, there is prima facie material to connect the applicants/accused with the crime in question. There are no special circumstances brought on record by the applicants so as to enlarge them on bail. In our considered opinion, this is not a fit case to use the discretion in favour of the applicants. In the result, the application is rejected. JUDGE JUDGE *rrg.