(1) Cri. Application No. 3777 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 3777 of 2011 (In Criminal Appeal No. 440 of 2011) Sandeep @ Babya s/o. Baban Bangar, Age : 25 years, Occupation : Agriculture, .. Applicant / Appellant R/o. Niranjan Chowk, Mangalwara, (Original accused no.1) Hingoli, Taluka and Dist. : Hingoli. versus The State of Maharashtra, Through P.S.O. Police Station, Hingoli (Gramin), Taluka & District : Hingoli. .. Respondent. ....................... Mr. A.B. Girase, Advocate, with Mr. D.M. Shinde, Advocate, for the applicant. Mr. S.G. Nandedkar, Additional Public Prosecutor, for the respondent. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 1ST DECEMBER 2011 (2) Cri. Application No. 3777 of 2011 COURT'S ORDER : 1. Heard learned respective Counsel for the parties. 2. This is an application preferred by the applicant / appellant (original accused no.1) seeking bail pending hearing and final disposal of Criminal Appeal No. 440 of 2011, suspending the substantive sentence imposed upon him. 3. It appears that the applicant i.e. original accused faced the trial along with the co-accused persons i.e. accused nos.2 to 5, for the offences punishable under Sections 302, 323, read with Section 149 and 148 of Indian Penal Code, under Sessions Trial No. 37/2006, and the applicant herein and co-accused nos. 2 to 5 were acquitted for the offences punishable under Sections 148, 302 and 323, read with Section 149 of Indian Penal Code. However, applicant herein i.e. original accused no.1 was convicted for the offence punishable under Section 304 Part II of Indian Penal Code, and he is sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 500/-, in default of payment of fine, to suffer rigorous imprisonment for three months, by way of judgment and order dated 8th August 2011, rendered by the learned Additional Sessions Judge, Hingoli, in Sessions Trial No. 37/2006. (3) Cri. Application No. 3777 of 2011 4. The applicant has questioned the said conviction and sentence by filing Criminal Appeal No. 440 of 2011, which has been admitted by this Court on 6th September 2011. On the aforesaid background, the applicant has preferred the present application for bail. 5. It is canvassed by the learned Counsel for the applicant that the appeal filed by the applicant, challenging the conviction and sentence, has been admitted by this Court and there is no likelihood that the said appeal would be taken up for final hearing in the near future. It is also submitted by the learned Counsel for the applicant, that the applicant was on bail during the pendency of trial, and there is no grievance of the respondent that the applicant misused the said liberty. Moreover, it is also submitted that the applicant has already deposited the fine amount before the trial court, and hence, it is urged that the applicant be released on bail during the pendency of the appeal. 6. As regards the prosecution case, learned Counsel for the applicant submitted that the allegations are that the dispute had taken place between Radhabai w/o. Mahadeo Bangar i.e. complainant and accused nos.1 and 2 on 25-12-2005 on account of cutting of grass from common Bandh of their field situated at (4) Cri. Application No. 3777 of 2011 village Jambwadi. Thereafter, on 26-12-2005 at about 2.30 p.m., when Radhabai and her husband Mahadeo Bangar were in their field, accused no.1 Sandeep and accused no.2 Baban called said Mahadeo, and in response, he went towards them, and on the motive of cutting of grass on the earlier day, the applicant herein, namely, Babya @ Sandeep allegedly dealt stick blows on the head of Mahadeo, as well as, dealt stick blows on his waist and thereby he failed on the ground. The said victim Mahadeo sustained invisible injuries on his head and waist and thereby Mahadeo omitted blood and became unconscious. Radhabai intervened into the quarrel. At that time, brother and father of accused no.1 Sandeep @ Babya i.e. applicant herein, who were armed with sticks, were also present there. It is further alleged that Radhabai with the help of Baban brought her husband up to the bridge by bullock cart, and thereafter, Mahadeo was taken to Civil Hospital, Hingoli, by auto-rickshaw and admitted there in injured condition, and later on he was shifted to Civil Hospital at Nanded, and subsequently, Mahadeo succumbed to the injuries on 27-12-2005. 7. It is canvassed by the learned Counsel for the applicant, that the prosecution examined the complainant Radhabai as PW 9; PW 8 Vithal Kishanrao Musale, father-in-law of victim Mahadeo; and PW 10 Vatchalabai Maroti Bangar, (5) Cri. Application No. 3777 of 2011 mother of victim Mahadeo, as eye witnesses, but all the said witnesses are interested witnesses. It is submitted that it has come in evidence that other independent persons, namely, Sampat Bangar, Parya Bangar, Kakshinath Kute and Ganesh Kale, intervened into the said quarrel but the prosecution have not examined the said persons as independent witnesses. It is further submitted that though PW 6 Sampat Bangar has been examined as Panch witness, he turned hostile to the case of prosecution. It is further submitted that PW 8 Vithal Musale and PW 10 Vatchlabai Bangar are not trustworthy witnesses, as held by the learned trial court. It is further submitted that even PW 4 Baban Darade, who allegedly took injured Mahadeo to bullock cart, has not supported the case of the prosecution. It is also submitted that the Chemical Analyzer's report, regarding the extract of soil taken from the spot under the spot panchanama, also has not supported the case of prosecution. It is also canvassed that the spot panchanama is doubtful. 8. Accordingly, learned Counsel for the applicant argued that the prosecution case is solely relied upon the testimony of complainant Radhabai i.e. wife of deceased Mahadeo, and there is no convincing and direct evidence supporting the case of the prosecution, and even some portion of version of PW 9 Radhabai was not acceptable, as observed by the learned trial court. In the (6) Cri. Application No. 3777 of 2011 said context, it is submitted that the version of PW 9 Radhabai in her examination in chief is contradictory to her cross examination. Moreover, it is submitted that the victim was admitted in hospital in unconscious condition, and therefore, there was no opportunity to record his statement. According to the learned Counsel for the applicant, there are deformities, infirmities and lacunae in the prosecution case and the conviction imposed upon the applicant is erroneous and unsustainable, and hence, learned Counsel for the applicant urged that the applicant be enlarged on bail during the pendency of the Criminal Appeal. 9. Learned APP, for the respondent / State countered the said arguments and opposed the present application vehemently, and submitted that there are specific allegations that the applicant herein i.e. original accused no.1 assaulted the victim Mahadeo by stick on his head and the said direct evidence has been supported by medical evidence adduced by PW 12 Dr. Sujata Kute, as well as injury certificate issued by her at Exhibit 58, which reveals that the victim sustained following injuries : (1) Contusion over right frontal and parietal region, 4 cm X 3 cm - Grievous injury. (2) Contusion over left parietal region, 4 cm X 3 cm - Grievous injury. (7) Cri. Application No. 3777 of 2011 (3) Contusion over chest on right side, 4 cm X 3 cm - Simple injury. (4) Contusion over epigastrium, 6 cm X 2 cm - Simple injury. Accordingly, it is submitted that the aforesaid first two injuries are grievous injuries, and PW 15 Dr. Mohan Pawar, who conducted autopsy on the dead body of victim Mahadeo, stated that the injuries mentioned in column Nos.18 and 19 of the post mortem report are sufficient to cause death in the ordinary course of nature, and the injuries mentioned in column no.17 of post mortem report are ante mortem injuries, which are described as under : (1) Contusion over chest on right side near lower part of sternum anteriorly, diffuse margins over 5 X 3.5 cm - reddish purple colour. (2) Contusion over left side of lower part of epigastric region of 6 cm x 3 cm - diffuse margins - reddish purple colour. (3) Contused abrasion over left leg anteriorly just below knee over 3.5 cm X 2 cm - reddish purple. (8) Cri. Application No. 3777 of 2011 It is further canvassed that the weapon which was allegedly used by the applicant for the assault on the victim, i.e. stick, has been recovered from the accused under seizure panchanama. Hence, it is canvassed that there is cogent incriminating evidence against the applicant, and therefore, it is submitted that the learned trial court rightly convicted and sentenced the applicant, and accordingly, learned APP supported the impugned judgment, and urged that the present Application be dismissed, but while dismissing the Application, Criminal Appeal No. 440/2011 be fixed for final hearing early. 10. I have perused the impugned judgment dated 8th August 2011, and the record and proceedings with the assistance of the learned Counsel for the parties, and at the outset, it appears that the prosecution has examined as many as 17 witnesses to substantiate the charges levelled against the applicant and co- accused persons, and apparently, there are specific allegations against the applicant in respect of the assault on the victim Mahadeo by him, which resulted into his death, and the medical evidence adduced / produced by the prosecution, as well as, evidence of post mortem examination, adduced / produced by the prosecution is, apparently, in consonance with the said allegations. Moreover, weapon which was allegedly used by the applicant in the said assault was recovered under the seizure (9) Cri. Application No. 3777 of 2011 panchanama, and the said corroborative piece of evidence is against the applicant. 11. Hence, after considering the rival submissions advanced by the learned Counsel for the parties, prima facie it appears that there is incriminating evidence against the applicant, and therefore, this is not a fit case to enlarge the applicant on bail, pending hearing and final disposal of Criminal Appeal No. 440/2011, and hence, I am not inclined to accept the submissions advanced by the learned Counsel for the applicant, and therefore, present Application deserves to be rejected. 12. In the result, present Criminal Application stands dismissed. However, hearing of Criminal Appeal No. 440/2011 stands expedited. 13. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/cria3777