- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.51 OF 2010 IN CRIMINAL APPEAL NO.673 OF 2009 Bhaskar @ Basha Sardar Kale and others ... APPLICANTS VERSUS The State of Maharashtra ... RESPONDENT ----- Mrs. S.S. Jadhav, Advocate for the applicant Shri S.D. Kaldate, A.P.P. for respondent ----- CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATED : 10th February, 2010. ORAL ORDER (PER DAVARE, J.) : 1. This is an application preferred by applicant Nos.1 to 7 i.e. original accused Nos.1 to 7 respectively, for suspension of substantive sentence and their enlargement on bail during the pendency of the appeal. 2. The applicants were convicted for offences punishable under Sections 147, 148, 323, 504 and 149 of the Indian Penal Code and each were sentenced on all counts to - 2 - imprisonment for one year, as well as they were convicted for the offences punishable under Section 201 and Section 149 of the Indian Penal Code and each were sentenced on both counts to imprisonment for one year and fine of Rs.1000/- each on both counts, in default of payment of fine, to undergo R.I. for six months, as well as the applicants were convicted for the offence punishable under Sections 302, 120-B and Section 149 of the Indian Penal Code and each of them were sentenced on all counts to imprisonment for life and fine of Rs.5000/- on all counts with default condition of non payment of fine, to undergo imprisonment for one year, by the judgment and order rendered by learned Additional Sessions Judge, Osmanabad in Sessions Case No.35/2009, on 22.12.2009. 3. Briefly stated, according to the prosecution, Rani Suresh Kale had an affair with victim Laxman, but the said victim denied the said affair and, therefore, Laxman was beaten by the present applicants. The alleged incident occurred on 9.5.2008 at about 1.30 p.m. when Laxman was called by Rani and they were called to Kanherwadi to verify about the said affair between Rani and deceased Laxman. Thereafter Laxman was beaten and P.W. 4 Anil informed the brother of Laxman i.e. Nana Shankar Kale i.e. P.W.1 first informant, who allegedly lodged report at Kallam Police Station, on the basis of which Crime No.63/2008 was registered against all the applicants. Prior to registration of the said crime, - 3 - A.D. No.22/2008 was registered at the instance of one Shriniwas Patil, who informed to police that an unidentified dead body was lying in abandoned condition. Thereafter the investigation was completed and charge sheet was filed on 6.1.2008 and case was committed to the Court of Sessions and was registered as Sessions Case No.35/2009. The applicants were charged for the offences punishable under the aforesaid sections and prosecution examined inasmuch as 13 witnesses to bring home the guilt against the applicants/ accused and applicants were convicted and sentenced as aforesaid. Being aggrieved and dissatisfied by the said judgment and order, the applicants have filed Criminal Appeal and during the pendency of the said appeal, prayed for enlargement on bail by way of present application. 4. Mrs. S.S. Jadhav, learned counsel for the applicants submitted that P.W.1 Nana Kale has lodged the F.I.R., but he has stated in his deposition that in fact narration of F.I.R. was given by P.W.4 Anil Shinde and P.W.1 Nana Kale had simply signed on it. Moreover, it is also canvassed by learned counsel for the applicants that although the victim Laxman was allegedly assaulted by iron rod, but no iron rod was seized by the investigating agency during the course of investigation. Moreover, it is also submitted by learned counsel for applicants that the sticks were produced by witnesses. The learned counsel for the applicants further urged that P.W.2 Dr. Gaysamudre carried out - 4 - the post mortem (Exhibit 36) upon the dead body of deceased Laxman and cause of death is given as shock due to lungs, liver, contusion with multiple contusions with abrasions, but it is significant to note that P.W. 2 Dr. Gaysamudre has admitted in his testimony that for the first time in the Court he explained the injuries mentioned in Column No.17 of the post mortem notes (Exhibit 36). With the aforesaid lacunae, the learned counsel urged for grant of bail to the applicants herein during the pendency of the appeal. The learned counsel for the applicants further urged that all the applicant Nos.1 to 6 were on bail during the pendency of trial and applicant No.7 Bibhishan had obtained anticipatory bail and he was on the same bail during the pendency of the appeal and the applicants have not misused the said liberty. 5. The learned A.P.P. opposed the present application vehemently and submitted that P.W.4 Anil Shinde is the eye witness to the occurrence of incident and his testimony has been corroborated by the deposition of P.W.5 Dattu. The learned A.P.P. also canvassed that there are no contradictions/ omissions in the testimony of eye witness P.W. 4 Anil Shinde and the learned trial Judge has rightly believed his testimony and convicted and sentenced the applicants and accordingly, the learned A.P.P. supported the judgment of the trial Court. The learned A.P.P. further canvassed that the reasoning adopted by the learned trial - 5 - Court while convicting and sentencing the applicants herein in respect of the offences for which they were charged, cannot be faulted with and, therefore, submitted that present application bears no substance and same is devoid of any merits and hence, same be rejected. 6. We have perused the record and proceedings with the assistance of learned counsel for the applicants as well as with the assistance of learned A.P.P. and also considered the submissions advanced by both the learned counsel for the parties anxiously and it is apparently clear that the submissions advanced by learned counsel for the applicants pertain to re- appreciation of evidence, which cannot be done at this stage. Moreover, having the comprehensive view of the matter, prima facie we feel that there is incriminating evidence against the applicants and, therefore, the application preferred by the applicants cannot be entertained during the pendency of the appeal since it is sans merits and, therefore, same is required to be dismissed. 7. However, the applicant No.5 Rani Suresh Kale and applicant No.6 Mohajabai Chagan Shinde are female and, therefore, we are inclined to allow their application for bail during the pendency of the appeal on the same terms and conditions of bail, but with fresh bonds. - 6 - 8. In the result, the Criminal Application is partly allowed to the extent of applicant No.5 Rani Suresh Kale and applicant No.6 Mohajabai Chagan Shinde and it is directed that the said applicant No.5 Rani Suresh Kale and applicant No.6 Mohajabai Chagan Shinde be enlarged on bail on the same terms and conditions of bail during the trial, but with fresh bonds. However, present application stands rejected in respect of applicant Nos.1 to 4 and 7, being devoid of any merits. 9. In the circumstances, we grant liberty to the applicants to prepare and file a private paper book within a period of two weeks and liberty is also granted to mention the appeal for early hearing. [ SHRIHARI P. DAVARE, J.] [ P.V. HARDAS, J.] fmp/cri51.10