1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1370/2009 Sanjay Khanderao Wadane & Ors .. APPLICANTS VERSUS The State of Maharashtra .. RESPONDENT .... Shri Joydeep Chatterji,Adv.for applicant. Shri S.K.Kadam,APP for Respondent. .... CRIMINAL APPLICATION NO.1447/2009 Sambhaji Asaram Aher & Ors. .. APPLICANTS VERSUS The State of Maharashtra & Ors .. RESPONDENTS ... Smt.S.S.Jadhav,Adv.for applicants Shri S.K.Kadam,APP for Respondent. ... 2 CORAM : P.V.HARDAS & R.K.DESHPANDE,JJ. DATE : 17/06/2009 ORAL ORDER : These applications arise in different appeals filed by the accused who stand convicted for offences punishable under Sections 147, 148,149, 326 and 302 r.w. 149 of I.P.C. And 4/25 of the Indian Arms Act, by the Additional Sessions Judge-II, Ahmednagar by his judgment dated 9/4/09 rendered in Sessions Case No.88/08. 2. Pursuant to their conviction, the accused have filed Criminal Appeal No.250/09 and Criminal Appeal No.246/09. According to the prosecution, the accused who had arrived in a Maroti Omni van, had knocked down the deceased first and thereafter had encircled deceased Ravindra and had mercilessly assaulted him by various weapons with which they were armed which include iron pipe, sword etc. The deceased succumbed to his injuries and upon completion of the investigation a charge sheet against accused came to be filed. 3. It is urged before us by Mrs.Jadhav, learned counsel for the applicants/accused in Criminal Application No.1447/09 and by Shri Chatterji, learned counsel appearing in Criminal Application No. 1370/09 that entire conviction rests upon the testimony of 3 eye 3 witnesses who are P.W.5 Anil, P.W.8 Sunil and P.W.12 Shaila, but a close scrutiny of the testimony of these eye witnesses establishes that there is interse contradiction and variance on material aspects of the prosecution case thus entailing the rejection of their testimony in its entirety. It is also urged before us by the learned counsel that P.W.8 had disclosed the names of the assailant after nearly 5 days of the incident. It is also urged that it is extremely doubtful if P.W.12 Shaila was an eye witness to the incident. The aforesaid grounds, according to us all pertain to reappreciation of evidence, which cannot be done at the stage of deciding the applications filed by the accused seeking the suspension of the substantive sentence of imprisonment and their enlargement on bail. Another submission which is advanced by Mrs.Jadhav is that original accused no.5 Vithal S/o Damu Waghmode was aged 65 years at the time of trial and was on bail, during trial. It is also urged before us that accused had not misused the liberty granted to him during the trial. These submissions according to us per se do not entitle the accused to seek suspension of his substantive sentence of imprisonment and his enlargement on bail particularly post conviction. The applicant accused has been convicted for serious offence of committing murder of deceased Ravindra. Whether original accused no.5 had participated in the same or not is a matter which would be decided by this Court at the time of hearing of the appeal. 4 Even if it is presumed that the accused had not participated in the assault on deceased Ravindra, the fact remains that prima facie, the presence of the accused at the scene of the offence is established and since he was a member of the unlawful assembly and the unlawful assembly prima facie had committed the murder of deceased Ravindra in prosecution of its common object, accused no.5 would be liable to be punished with the aid of Section 149 of I.P.C. In the light of these facts, therefore, we are not inclined to entertain the plea of original accused no.5 Vithal seeking his enlargement on bail pending the decision of the appeal. 4. After giving our anxious consideration to the submissions advanced before us by the learned counsel for the parties, we are unable to accede to the request of the accused for suspension of their sentence and their enlargement on bail pending the decision of the appeal. Accordingly, applications are dismissed. Hearing of the appeal expedited giving liberty to the accused to apply for early hearing after paper book is received. [R.K.DESHPANDE] [P.V.HARDAS] JUDGE JUDGE umg/criapln1370-09 5