1 Cri.A.1334.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1334 OF 2011 IN CRIMINAL APPEAL NO. 157 OF 2011 Ambadas S/o Ranuji Satpute Age 45 Years,Occup. Agriculture, R/o Takalkhopa Tq. Mantha, District Jalna. ...APPLICANT. VERSUS The State of Maharashtra, Through Police Station Officer, Mantha Police Station, Mantha, District Jalna. ...RESPONDENT. ... Shri.Ajay Shinde, Advocate for Applicant. Shri.S.G.Nandedkar, A.P.P. for Respondent. ... 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 2 Cri.A.1334.11 disposal of the Criminal Appeal No.157 of 2011. 3. The applicant - appellant challenged the Judgment and order dated 18th March, 2011, rendered by Additional Sessions Judge-2, Jalna, in Sessions Case No. 24 of 2008, thereby convicting him for the offence punishable under section 307 of the Indian Penal Code, and sentencing him to suffer rigorous imprisonment for five years and to pay fine of Rs.1000/-(Rupees One thousand), in default of payment of fine, to suffer further rigorous imprisonment for one month in Criminal Appeal No. 157 of 2011, which is already admitted. 4. The allegation against the applicant- appellant is that on 28th September, 2006 at 11.00 a. m. the accused-applicant herein gave two blows of stick on the head of the victim i.e. P.W.6 Narayan, along with co-accused-his wife, who was armed with Axe and son namely, Bhanudas, who was armed with stone, and they attempted to commit murder of Narayan, in furtherance of their common 3 Cri.A.1334.11 intention. 5. Mr. Shinde, learned counsel for the applicant submits that, although incident had taken place at 11.00 a.m. on 28th September, 2006, F.I.R. came to be lodged after 34 hours i.e. on 29th September, 2006 at 8.30 p.m. The prosecution has not explained the said delay, satisfactorily. According to the learned counsel for the applicant, there were two eye witnesses to the occurrence of incident, namely, Sushilabai and Bhanudas Chate but Bhanudas Chate, is relative of victim-Narayan, but therefore, he is interested witness. There are variances in the testimonies of Sushilabai and Bhanudas and said testimonies suffer from the contradictions and omissions. 6. It is canvassed that, there is no recovery of Axe, and even stick was also not recovered. It was canvassed that the applicant-appellant was on bail during the course of trial. He has not misused the said liberty, as well as the 4 Cri.A.1334.11 applicant-appellant has deposited fine amount on the same day, itself. Moreover, it is submitted that substantive sentence awarded by the trial Court is five years, which is a 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 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 appeal. 7. The learned APP opposed the present application vehemently, and submitted that there are eye witnesses to the occurrence of the incident, namely, Sushilabai and Bhanudas. Both eye witnesses supported the case of the prosecution and established the nexus between the 5 Cri.A.1334.11 accused and crime. It is further submitted that the stick has been recovered at the instance of the applicant-appellant, and which is incriminating evidence against the applicant- appellant herein. 8. According to the learned APP, the learned trial Judge has rightly assessed the evidence and convicted and sentenced the applicant-appellant herein, and further urged that present application bears no substance, therefore, same deserves to be dismissed. 9. I have perused the impugned judgment and 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. At the outset, the prosecution has examined in as much as 14 witnesses to substantiate the charges levelled against the applicant-appellant (Ori. accused). The learned trial Judge has acquitted 6 Cri.A.1334.11 accused Nos. 2 and 3, whereas convicted the applicant – appellant (accused No.1) by way of impugned Judgment and order dated 18th March, 2011, which has been challenged by the applicant- appellant, by filing criminal appeal before this Court. The said appeal has been already admitted by this Court, by order dated 30th March, 2011 and there is no likelihood of taking up the appeal for final hearing in near future. 10. 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, it is evident from the copy of the impugned judgment dated 18th March, 2011, that the applicant- appellant has already deposited the fine amount on that day, itself. Moreover, substantive sentence inflicted upon the applicant-appellant is of short term, relying upon the Judicial Pronouncement of Kirankumar Vs. M.P.(Supra) and therefore, the applicant deserves to be enlarged on bail, by 7 Cri.A.1334.11 suspending substantive sentence, pending hearing and final disposal of the criminal appeal and accordingly present application is required to be allowed. 11. In the result, present application is allowed and it is directed that the applicant- original accused No.1-Ambadas Ranuji Satpute be released on bail in the sum of Rs.20,000/-(Rupees Twenty Thousand only) with one surety in like amount, suspending the substantive sentence inflicted upon him, pending hearing and final disposal of Criminal Appeal No. 157 of 2011, on the following conditions: (a) The applicant-appellant(Original accused No.1) shall give attendance before the In-charge of Mantha Police Station Mantha, District Jalna, once in six months till disposal of the Criminal Appeal. (b) The applicant-appellant (Ori. accused No.1) shall not tamper and/or 8 Cri.A.1334.11 influence the witnesses of the prosecution directly or indirectly, in any manner, whatsoever. 12. 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. 13. The Record and Proceedings be sent back to the trial Court. 14. The Criminal Application is disposed of accordingly. Sd/- [SHRIHARI P.DAVARE, J.] MTK