1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO.2370 OF 2009 IN CRIMINAL APPEAL NO.288 OF 2009 Sudam s/o Sakharam Panchal APPLICANT VERSUS The State of Maharashtra RESPONDENT ..... Shri A.N. Kakade, Advocate for the applicant (appointed) Shri K.B. Choudhari, A.P.P. for respondent ..... CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 24TH AUGUST, 2009. ORAL ORDER (PER DAVARE, J.): 1. Perused. 2. By the present application, the applicant/accused prayed for suspension of substantive sentences awarded by learned Adhoc Additional District & Sessions Judge, Gangakhed by way of judgment and order in S.T.C. No.17/2008 on 30.5.2009 and requested to enlarge him on bail during the pendency of the appeal. 2 3. The applicant/accused was charged and was tried under Section 302 and Section 307 of the Indian Penal Code for committing murder of his nephew Pandurang and attempting to commit murder of his another nephew i.e. P.W.7 Vithal on 16.2.2008 by inflicting axe blows and was convicted for the offences punishable under Sections 302 and 307 of the Indian Penal Code and was sentenced to suffer imprisonment for life and five years rigorous imprisonment respectively by the aforesaid judgment and order. 4. Heard learned respective counsel for the parties. 5. The learned counsel for the applicant submitted that the learned trial Judge has relied upon the hear-say evidence and failed to appreciate the direct evidence and even P.W.1 Madhav is not the eye witness to the occurrence of the alleged incident. It is further submitted by learned counsel for the applicant that the learned trial Court relied upon the testimony of P.W.7 Vithal i.e. injured person but there are material contradictions therein and, therefore, same is unbelievable. It is further submitted that the prosecution failed to prove the motive which was important aspect in the present case as well as submitted that no fingerprints were found on the alleged weapon which was seized. Learned counsel for the applicant further canvassed that the applicant has been 3 implicated in this case falsely and prayed that he be released on bail during the pendency of the accompanying appeal. 6. The learned A.P.P. vehemently opposed the present application and submitted that prosecution has brought the motive on record that the victim Pandurang and his brother injured Vithal as well as their uncle i.e. applicant used to work as carpenters and the earnings of victim Pandurang and injured Vithal was more, of which the applicant was jealous. Apart from that, it is submitted that the axe by which the applicant inflicted blows upon the victim Pandurang and injured Vithal was recovered/ discovered at the instance of the applicant under the recovery panchanama (Exh. 40), which connects the applicant with the crime. The learned A.P.P. also submitted that P.W.3 Ashok saw the applicant running away from the place of the incident. Moreover, it is further submitted by learned A.P.P. that the injuries sustained by victim Pandurang and injured Vithal were on the vital parts of their respective bodies. Accordingly, the learned A.P.P. canvassed that present application bears no substance and same be dismissed. 7. We have perused the oral, documentary as well as medical evidence and also have gone through the record and proceedings which was made available to us. Apparently, the 4 prosecution has examined in all 15 witnesses to substantiate the charges levelled against the applicant herein, out of which P.W.7 injured Vithal is injured as well as eye witness to the occurrence of the incident and his testimony is of prime importance. Moreover, P.W.13 Dr. Patil, who examined injured Vithal stated that he sustained following injuries : (1) Contusion lacerated wound (incised wound) left forearm 4 c.m. X ½ x ½ c.m. (2) C.L.W. (incised wound) left parietal region, fracture of parietal bone 7 c.m. X 4 c.m. X 1 and ½ c.m. (grievous injury). (3) C.L.W. (incised wound) left ear pinna 2 c.m. X 1 and ½ c.m. grievous in nature. (4) C.L.W. (incised wound) clavicular region 5 c.m.x ½ c.m. x skin deep. (5) C.L.W. on left palm 4 x 1 c.m. and issued certificate at Exh. 44 and he opined that the aforesaid injuries could be caused by means of axe. The injury Nos.2 and 3 out of the aforesaid injuries appear to be grievous and on the vital part of the injured P.W.7 Vithal. 8. Besides that, Dr. Durge conducted the post mortem on 5 dead body of victim Pandurang and post mortem notes are produced at Exh. 51, which discloses that incised wound as well as fracture was found on the parietal region and the cause of death was due to brain haemorrhage, due to the incised wound over the skull. 9. Hence, in view of the aforesaid position, it is apparent that there is evidence against the applicant. Moreover, it is material to note that, the applicant was not on bail during the pendency of the trial. Hence, having the comprehensive view of the matter, we are of the considered view that this is not a fit case to enlarge the applicant on bail during the pendency of the appeal and, therefore, present application stands dismissed. 10. The High Court Legal Services Authority to pay the professional fee of Shri A.N. Kakade, Advocate, for this criminal application, who is appointed as amicus curiae in this matter. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) fmp/cri2370.09