1 Cri.A.1331.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1331 OF 2011 IN CRIMINAL APPEAL NO. 156 OF 2011 Salim @ Salya Maheboob Shaikh Age 25 Years,Occup. Labour, R/o Rajiv Gandhi Nagar, Osmanabad, Tq. And District Osmanabad. ...APPLICANT. VERSUS The State of Maharashtra ...RESPONDENT. ... Shri.B.A.Dhengle, Advocate for Applicant. Smt.Y.M.Kshirsagar, A.P.P. for Respondent- State. ... CORAM: SHRIHARI P.DAVARE, J. DATE : 11TH APRIL, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant-appellant (Original accused) seeking bail, and suspending the substantive sentence inflicted upon him, pending hearing and final disposal of the Criminal Appeal No.156 of 2011. 2 Cri.A.1331.11 3. The applicant - appellant challenged the Judgment and order dated 24th March, 2011, rendered by Additional Sessions Judge, Osmanabad, in Sessions Case No. 28 of 2009, thereby convicting him for the offence punishable under section 307 read with section 34 of the Indian Penal Code, and sentencing him to suffer rigorous imprisonment for seven years and to pay fine of Rs.500/-(Rupees Five Hundred), in default of payment of fine, to suffer further rigorous imprisonment for four months, in Criminal Appeal NO. 156 of 2011, which is already admitted by this Court. 4. Briefly stated, the prosecution case is that, on 17th August 2007 at 2.00 p. m.,Prakash(P.W.6) and Prashant(P.W.7), the injured were proceeding by Bolero Jeep to search their driver Vidya Ingale. Prashant(P.W.7) was driving the jeep. When they were proceeding through Sherkhane Petrol Pump, in front of Dnyaneshwar Temple, the accused Salim and two other also proceeding by the said 3 Cri.A.1331.11 road. At this juncture, Prashant(P.W.7) blown the horn, thereupon accused hurled the abuses to Prashant(P.W.7) loudly. Hence, Prashant(P.W.7) stopped the vehicle and questioned the accused. Thereupon, the accused asked as to why he dodged them by jeep, and in Nagarpalika election what was told to brother of the accused. Accordingly, the accused quarreled with him. It is also alleged that, the accused and two unknown persons abused and rushed towards Prashant(P.W.7) to assault him. Thereupon, Prakash(P.W.6) also got down from the Jeep, at that time Laxman(P.W.8) and Satish(P.W.9) also arrived there, who intervened into the quarrel. At this juncture, accused Salim stabbed on the abdomen of Prashant(P.W.7) by knife having black handle thereto, thereby Prashant(P.W.7) sustained bleeding injury and felled down. . Thereafter, accused and two unknown persons ran away. Prakash (P.W.6), Laxman (P.W.8) and Satish(P.W.9) removed Prashant(P.W.7) to Government Hospital by Auto rickshaw, after 4 Cri.A.1331.11 giving intimation to the Police Personnel, and the injured Prashant(P.W.7) was referred to Civil Hospital Solapur. Thereafter, Prakash (P.W.6) lodged the report at the Police Station at about 22.45 hours on 17.08.2007. The applicant-appellant was charged for the offences punishable under sections 307, 504 read with section 34 of the Indian Penal Code, and accused-appellant faced the trial therefor. To substantiate the charges levelled against applicant-appellant, the prosecution has examined in all 16 witnesses. 5. Mr. Dhengle, learned counsel for the applicant-appellant canvassed that eye witnesses of the incident, namely, Laxman(P.W.8), Satish (P.W.9) and Jagdish Baliram Shinde(P.W.10) turned hostile to the case of prosecution, and they did not support the case of the prosecution. It is also argued by the learned counsel for the applicant that there are variances in the testimonies of Prakash-Complainant (P.W.6) and Prashant-injured(P.W.7). Both the said 5 Cri.A.1331.11 testimonies cannot be believed due to omissions and contradictions therein. It is also submitted by the learned counsel for the applicant-appellant that Prakash-complainant(P.W.6) is brother of injured-Prashant(P.W.7), and his testimony is interested testimony. 6. It is also canvassed that, it is apparent that the presence of Laxman(P.W.8), at the time of incident is doubtful. According to the learned counsel for the applicant, although alleged incident had taken place at 2.00 p.m. on 17th August, 2007, but the first information report came to lodged after delay of eight hours at 10.00 p.m. on the same day, and the prosecution has not explained the said delay, satisfactorily, and hence, canvassed that the said delay is fatal to the prosecution case. 7. The learned counsel for the applicant also canvassed that Dr. Shaileja Sharma, who examined victim Prashant and issued Medical Certificate, 6 Cri.A.1331.11 was not examined by the prosecution, for the reasons best known the prosecution, in spite of issuance of summons to her. The prosecution has examined Dr. Shriniwas Gajjam and produced Medico Legal Certificate at Exh.67. As regards the testimony of said Dr. Shirniwas Gajjam, the learned counsel for the applicant submits that, the specific question was put to him, during his cross-examination that “whether injury sustained by Prashant Salunke is not dangerous to his life?”, he replied that ‘injury is not fatal.’ 8. The learned counsel for the applicant submitted that the prosecution has examined another witness Dr. Vaishali Choudhari, who noted the injuries in Medico Legal Register, which was brought in evidence, and she stated in her testimony that, the injured Prashant has sustained grievous injury, but in her cross-examination she stated that if the treatment is given then the injury would not be grievous. 7 Cri.A.1331.11 9. According to the learned counsel for the applicant, as regards the discovery of knife at the hands of applicant-appellant(Accused), Laxman Wadaje-Investigating Officer(P.W.14), admitted in his cross-examination that neither knife bears his signature nor signatures of panchas, nor there is mention in the seizure panchnama that knife was sealed. 10. Besides, the learned counsel for the applicant also canvassed that the alleged incident occurred on the road, in front of Dnyaneshwar temple, when victim as well as the accused were proceeding, and there was no premeditation or intention to kill victim Prashant by giving alleged blow of knife by the accused. 11. The learned counsel for the applicant submits that victim- Prashant has criminal antecedents and back ground and Criminal cases are pending against him and he relied on Exhibits 86, 87 and 89 in that respect. 8 Cri.A.1331.11 12. Moreover, the learned counsel for the applicant submits that applicant-appellant was on bail during pendency of trial and did not misuse the said liberty. So also, it is submitted that applicant has already deposited the fine amount before the trial Court. Moreover, it is submitted that substantive sentence awarded by the trial Court is seven years, which is of short term sentence, and relied upon the judicial pronouncement in the case of Kirankumar Vs. State of M.P. reported in (2001 AIR SCW 5130). It is further submitted that the appeal filed by the applicant-appellant(Ori. accused) has been admitted by this Court, on 30th March, 2011, and there is no likelihood of taking up the said criminal appeal for final hearing in near future. Hence, learned counsel urged that applicant- appellant be enlarged on bail, pending hearing and final disposal of the criminal appeal. 13. The learned APP opposed the present application vehemently, and submitted that injury 9 Cri.A.1331.11 sustained by the victim Prashant is of serious nature, which was on the abdomen in lumber region of the victim, as per medical evidence, and weapon i.e. knife was discovered at the instance of the accused, and therefore, accused was rightly convicted and sentenced by the trial Court. According to the learned APP, injury sustained by Prashant was dangerous to his life, as stated by Dr. Shriniwas Gajjam, since it was bowel deep. The learned APP further submitted that incident occurred out of political rivalry between the complainant party and victim party, and it was premeditated incident, and hence, the applicant is not entitled to be enlarged on bail. According to the learned APP, if the applicant is released on bail, there is every possibility that he may threaten the complainant, victim and witnesses and tamper with the evidence, and she urged that application preferred by the applicant for bail bears no substance and same be dismissed. 14. I have perused the impugned judgment and 10 Cri.A.1331.11 order, as well as perused the Record and Proceedings with the assistance of the learned counsel for the parties, and also heard the submissions advanced by the learned counsel for the parties. At the outset, the applicant- appellant has filed accompanying Criminal Appeal No. 156 of 2011, challenging the conviction and sentence inflicted upon him, by way of Judgment and Order dated 24th March, 2011, by the Additional Sessions Judge, Osmanabad, in Sessions Case No. 28 of 2009, by which he was convicted for the offence punishable under section 307 read with section 34 of the Indian Penal Code, and was sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.500/-(Rupees Five Hundred), in default of payment of fine, to suffer further rigorous imprisonment for four months, and the said appeal has been admitted by this Court, by order dated 30th March, 2011, and there is no likelihood of taking up the said appeal for final hearing in near future. 11 Cri.A.1331.11 15. Moreover, admittedly, the applicant-appellant was on bail during the pendency of the trial, and there is no grievance of the respondent that applicant misused the said liberty. So also, the applicant-appellant (Original - accused) was convicted vide impugned judgment dated 24th March, 2011, and it appears from the copy of the judgment dated 24th March, 2011 that the applicant- appellant has already deposited the fine amount on that day itself. Moreover, substantive sentence inflicted upon the applicant-appellant for seven years can be construed as short term sentence, relying upon the Judicial pronouncement in the case of Kirankumar Vs. State of M.P. reported in (2001 AIR SCW 5130) cited supra, and hence the applicant deserves to be enlarged on bail, by suspending substantive sentence, pending hearing and final disposal of the criminal appeal bearing No. 156 of 2011, and accordingly present application deserves to be allowed, by imposing certain conditions. 12 Cri.A.1331.11 16. In the result, present application is allowed and it is directed that the applicant-original accused Salim @ Salya Maheboob Shaikh be released on bail in the sum of Rs.20,000/-(Rupees Twenty Thousand only) with one surety in like amount, and suspending the substantive sentence inflicted upon him, pending hearing and final disposal of Criminal Appeal No. 156 of 2011, on the following conditions: (a) The applicant-appellant(Original accused shall give attendance before the In-charge of Osmanabad Police Station Osmanabad, District Osmanabad, once in six months till disposal of the Criminal Appeal. (b) The applicant-appellant (Ori. accused) shall not tamper and/or influence the witnesses of the prosecution directly or indirectly, in any manner. (c) The applicant-appellant shall not enter into the area of Kakade 13 Cri.A.1331.11 Plot, Shahunagar, Osmanabad, where complainant Prakash and victim Prashant reside, till disposal of the said appeal. 17. However, it is clarified that the observations made herein above are prima facie in nature and the learned trial Court shall not in any manner get influenced by the said observations. 18. The Record and Proceedings be sent back to the trial Court. 19. The Criminal Application is disposed of accordingly. Sd/- [SHRIHARI P.DAVARE, J.] MTK