1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO.1698 OF 2009 IN CRIMINAL APPEAL NO.274 OF 2009 Pandurang s/o Baliram Sawale ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENTS ..... Shri B.R. Warma, Advocate for the applicant Shri S.D. Kaldate, A.P.P. for the respondent/State ..... CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 23RD JULY, 2009. ORAL ORDER : 1. Heard learned counsel for the applicant and learned A.P.P. for the respondent/State. 2. The prosecution case in short is that in the locality, some children were playing near Maroti temple. In the late 2 evening, due to some incident, there was altercation took place and the accused started abusing the prosecution wintesses. While this was going on, the applicant Pandurang (original accused) gave blows and kicks with hands on the stomach region of the deceased Ukha Dhana Sawale. P.W.2, who was examined as eye witness by the prosecution further testified before the Court that co-accused Hasrat assaulted the deceased on stomach with the aid of stick. It was further stated that, original accused Kailas Sawale reached there with stick and he assaulted at right hand of P.W.2 Gambhir Sawale. P.W.7 Parwatibai Ramesh Sawale was examined as eye witness, who happens to be sister of wife of deceased. She too deposed before the Court regarding the role played by the applicant Pandurang, Hasrat and other original accused. The post mortem notes (Exh. 57) reveals that the deceased suffer 4 surface wounds. The liver right lobe was seen torn having size of 0.5 cm. deep from interior to posterior approximately 15 cm. long. The cause of death was cardiorespiratory failure due to hypocolenic shock due to liver rupture. P.W.5 Dr. Nitin Dhande was examined, who performed post mortem. He noticed some abrasions on the body of the deceased. On internal examination, he found that right side 3 rd, 4 th, 6 th, 8 th and 9 th ribs were fractured. Right lung and left lung 3 were congested. On examination of liver, the doctor deposed that he found that right lobe of liver was torn. It was the opinion of the medical officer that external injuries were corresponding with internal injuries and the cavity of abdomen was filled up with free blood. The learned counsel Shri Warma for the applicant submitted that the testimony of P.W. 7 is not reliable as there was darkness, she could not identify the accused, neither witnessed the alleged assault, which took place according to the narration of the prosecution witnesses. The counsel submitted that the death could not be direct result of the assault which is alleged to have been done by the applicant Pandurang. Therefore, conviction and sentence of the applicant punishable under Section 302 of the Indian Penal Code was against the evidence and record. 3. Learned A.P.P. Shri Kaldate submitted that there is cogent and reliable evidence in support of the prosecution case. Two eye witnesses, P.W.2 Gambhir Sawale and P.W.7 Parwatibai Sawale have taken consistent stand and, their testimonies are not shaken. The prosecution case is worth relying. The medical evidence in the shape of post mortem report and the testimony of the doctor supports the version of eye witnesses. Therefore, the learned A.P.P. submitted that after considering the entire 4 evidence, the trial Court convicted and sentenced the applicant for a serious offence of commission of murder. The learned A.P.P. further submitted that the blood stains found on the clothes of the applicant were proved to be of the blood group of the deceased which circumstance goes against the applicant. 4. Original record and proceedings was called for. We have perused the same. Considering the observations and reasonings adopted by the trial Court, perusal of the evidence of the eye witnesses P.W.2 Gambhir Sawale and P.W.7 Parwatibai Sawale reflects prima facie that they attributed specific role to Pandurang who assaulted the deceased on stomach region by kicks and blows with hand. Considering the cause of death as opined by the doctor and the medical evidence and the deposition of the Medical Officer, we find that there is evidence against the applicant Pandurang. The trial Court, after examining minutely the evidence, convicted and sentenced the applicant for assaulting deceased, who was an old person of 65 years of age. Considering all these facts and circumstances, we are of the opinion that the applicant does not deserve to be released on bail pending hearing and final disposal of the appeal. It is informed to us that the co- accused Kailas Baliram Sawale had filed Criminal Appeal No. 5 263/2009 before the learned Single Judge. He was released on bail. The said appeal is tagged with this Criminal Appeal. As of now, no papers are placed before us concerning the appeal of the another accused Hasrat. 5. The application of the applicant stands rejected. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.)