1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 4537 OF 2009 IN CRIMINAL APPEAL NO. 668 OF 2009 Vilas s/o Hiraman Bhalerao ...Applicant VERSUS The State of Maharashtra ...Respondent ..... Shri Joydeep Chatterjee, advocate for the applicant Shri K.J.Ghute Patil, APP for the respondent ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 22nd January, 2010. ORAL ORDER : (Per Shrihari P. Davare, J.) 1 This is an application preferred by the applicant/accused no.1 for the suspension of substantive sentence and his release on bail during the pendency of appeal. 2 2 By the judgment and order dated 17.12.2009 rendered by leaned Additional Sessions Judge-2, Aurangabad in Sessions Case No. 291 of 2007, the applicant/accused no.1 came to be convicted for the offences punishable under Sections 302, 447 and 324 of the Indian Penal Code and was sentenced to suffer R.I. for 3 months and to pay a fine of Rs. 1,000/- with default condition of non-payment of fine to suffer S.I. for one month for the offence punishable under Section 447 of the Indian Penal Code; and was also sentenced to suffer R.I. for one year and to pay a fine of Rs. 1,000/- with default condition of non-payment of fine to suffer S.I. for one month for the offence punishable under Section 324 of the Indian Penal Code; and was sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/- with default condition of non- payment of fine to suffer S.I. For one month for the offence punishable under Section 302 of the Indian Penal Code. 3 Applicant/accused no.1 was also charged for the offences punishable under Sections 143, 147, 149 of the Indian Penal Code, and also accused nos. 2 to 5 were charged for the said offences and also for the offences punishable under Sections 324, 447 and 302 of the Indian Penal Code, but they were acquitted of the said charges by the said judgment and order. 3 4 It is alleged that the incident occurred on 12.8.2007 at about 11.30 a.m. and Bablu alias Shankar was allegedly murdered during the occurrence of the said incident. The prosecution case principally is based upon the testimony of alleged injured eye witness PW1 Rahul, who is also the first informant in the present case. The prosecution examined as much as 11 witnesses to support the charges levelled against the applicant and other accused persons. It is alleged that the victim was assaulted by Bamboo stick and he succumbed to the injuries and expired on the same day i.e. 12.8.2007. The cause of death as reflected in the postmortem notes is head injury. According to the prosecution, the victim met with the homicidal death. 5 Learned counsel for the applicant urged that the victim sustained single blow of stick, and therefore, there was no intention on the part of the applicant to kill the said victim. Learned counsel for the applicant also canvassed that the recovery of the Bamboo stick at the instance of the applicant herein comes under the doldrums, since the panch witness turned hostile and he stated that the stick was seized in the police station. The defence of the applicant is that the period when alleged incident took place was of rainy season and there is every possibility that the deceased might have slipped from the surface 4 and succumbed to the injuries by way of accidental death. 6 Learned A.P.P. opposed the present application vehemently and supported the judgment and order rendered by the learned Trial Court convicting and sentencing the applicant herein, and submitted that the evidence adduced and produced by the prosecution connects the applicant with crime and learned Trial Judge has rightly convicted and sentenced the applicant and he is not entitled to be enlarged on bail. 7 We have perused the R. and Ps. as well as heard the submissions advanced by the learned counsel for the parties. Although the learned counsel for the applicant canvassed that the applicant was on bail during the pendency of the trial, the submission advanced by the learned counsel for the applicant requires re-appreciation of evidence, which cannot be done at this stage. Moreover, after considering the ocular evidence and medical evidence on record and after having the comprehensive view of the matter, prima facie, we feel that there is evidence against the applicant herein, and therefore, the present application deserves to be rejected and the same stands rejected accordingly. However, we direct that the hearing of the present appeal be expedited. Liberty is granted to provide private paper 5 book and to mention the matter for final hearing after submission of the paper book. (SHRIHARI P. DAVARE, J.) (P.V.HARDAS, J.) dbm/crap4537.09