1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2695 OF 2009 in CRIMINAL APPEAL ST NO. 310 OF 2009 .... Sk. Sayyed s/o Sk. Badshah Applicant. V E R S U S The State of Maharashtra. Respondent. Mrs. Shabhat T. Kazi, advocate (appointed) for the petitioner. Shri S.D. Kaldate, APP for the State of Maharashtra- respondent. .... CORAM : NARESH H. PATIL & SHRIHARI P. DAVARE, JJ. DATE : 1ST SEPTEMBER, 2009. PER COURT :- 1. Heard. The counsel for the applicant submitted that the evidence led by the prosecution is not reliable. The P.W.5, daughter of the deceased was an interested witness was cited by the prosecution as an eye witness to the incident. She further submitted that, the medical evidence does not support the version of the eye witnesses. There is no injury on the stomach of the deceased. The discrepancy regarding the method, narration of incident 2 was pointed out and it was submitted that some of the alleged eye witnesses have not supported the prosecution case. As appeal was already admitted by this Court, the counsel therefore submits that pending hearing and disposal of the appeal, the applicant-accused be released on bail. 2. The learned APP Shri Kaldate submits that merely because P.W. 5 is said to be the daughter of the deceased, her version cannot be discarded on that ground. P.W.5 has corroborated the version of P.W.8. The trial court has placed reliance on the evidence of the eye witnesses and prosecution has led cogent and reliable evidence against the accused. The Learned APP has brought to our notice that initially charge sheet was filed against five persons, charge was framed against 3 accused persons. Two of them absconded. Therefore, the trial proceeded against the present applicant-accused. 3. Record and proceedings was called for. We have perused the same and judgment and order. 4. We find that the charge sheet was filed against five accused persons. In the committal order, Judicial Magistrate First Class, Ambad mentions the names of three accused persons. The charge was framed on 20 th of January, 2006 by the Learned Adhoc Additional Sessions Judge, Jalna 3 against accused Sk. Sayyed Sk. Badshah, Shaikh Rashid s/o Sk. Badshah, and Shaikh Hanif s/o Sk. Suleman. On 18 th of March, 2008 charge was framed separately against present applicant-accused and case was tried. It seems that the original accused No.4 and 5 were absconding since beginning. 5. We have perused the evidence of P.W.5 daughter of the deceased and eye witness to the incident. P.W.8 was Rambhau cited as an eye witness. P.W.5 has narrated the incident, assault on his father and named accused persons, applicant-accused. She has specifically deposed that the applicant was having knife (koyta) in his hand and he has assaulted his father on arm and legs and cut both legs. Though P.W.5 stated that accused Sayyed Badshah assaulted her father with knife on the stomach which is not corroborated by the medical evidence but on that ground the evidence of the p.w.5 cannot be discarded. 6. It is curious to note in this case that, after framing charge, original accused nos. 2 and 3 absconded and original accused no.4 and 5 probably were absconding since beginning. Therefore, the Magistrate committed case to Sessions Judge against three accused persons. We have perused the post mortem report and the evidence of Doctor too. 4 7. The trial court in its order directed in charge of Police Station Gondi, Tq. Ambad Dist. Jalna to file separate charge sheet against accused No.4 Sk. Baba s/o Sk. Suleman and No.5 Sk. Karim s/o Sk. Sayyad on their arrest. Considering the evidence on record, background of the case and the surrounding circumstances we are not inclined to release the applicant- accused on bail. The application is rejected. 8. The Superintendent of Police, Jalna is directed to take appropriate steps for arresting the absconding accused in connection with the Crime No. I-0015/2004, registered at Gondi Police Station, Tq. Ambad. 9. Registry to forward a copy to Superintendent of Police. 10. The learned counsel filed and argued the application for condonation of delay, the admission of appeal and bail application. The counsel is appointed by the Court by an order dated 14 th of July, 2009. The professional fees of the counsel is quantified at Rs.3,000/- at this stage. ( SHRIHARI P. DAVARE ) ( NARESH H. PATIL ) JUDGE JUDGE ***** aaa/2695.09