1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 757/2009 in Criminal Appeal No. 26/2008 Sheshrao Tembhurne and another vs. State of Maharashtra. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. CORAM : A.P.Lavande & Prasanna B. Varale,JJ DATE OF RESERVING THE ORDER : 30.06.2009 DATE OF PRONOUNCEMNT : 03.07.2009 Heard Mr. J.M. Gandhi, learned counsel for the applicants and Mr. A.G. Mujumdar, learned A.P.P. for the respondent. 2. The applicants/ accused who are convicted by the Additional Sessions Judge, Nagpur by the Judgment and order dated 20.8.2008 passed in Sessions Trial No. 120/2000 for having committed murder of Rajesh Tembhurne seek suspension of sentences and bail. The accused were prosecuted for having committed murder of Rajesh Tembhurne on 28.10.1999 at 8.45 p.m. in front of the house of the accused. It is the case of the prosecution that both the accused in furtherance of their common intention caused death of Rajesh. 2` 3. The accused no.1 caught hold of deceased Rajesh and accused no.2 gave several blows on Rajesh causing him serious injuries which ultimately resulted into his death. 4. Mr. Gandhi, the learned counsel for the applicants submitted that the prosecution evidence itself discloses that the deceased used to tease and make fun of the accused and in spite of repeated requests and warnings deceased did not stop teasing and making fun of the accused. The learned counsel further submitted that even if the prosecution case is accepted as it is at the most the offence punishable under Section 304 (II) of the Indian Penal Code is made out against the accused. He further submitted that the accused were on bail during the trial and they did not misuse liberty and, therefore, taking into consideration the facts and circumstances of the case the substantive sentences imposed on the accused be suspended and the accused be released on bail pending the appeal. 5. Per contra, Mr. Muzumdar, learned A.P.P. submitted that the offence punishable under Section 302 read with Section 34 of the Indian Penal Code is clearly made out against the accused and having regard to the nature of the injuries caused it 3` can not be said that the offence punishable under Section 304 (II) of the Indian Penal Code is made out against the accused. He further submitted that whether the offence punishable under Section 302 or 304 of the Indian Penal Code is made out, is a matter to be decided upon appreciation of the evidence at the time of final hearing and this exercise could not be undertaken at this stage. He further submitted that having regard to the nature of the weapons and injuries caused and the manner in which murder was committed this is not a fit case to suspend the substantive sentence imposed upon the accused and grant of bail. 6. Having considered the submissions made by the learned counsel for the applicants and learned A.P.P. and having perused the record, we are of the considered opinion that this not a fit case for suspending substantive sentences imposed on the accused and releasing them on bail. No doubt it is the case of the accused that the deceased used to make fun of them although he was repeatedly requested and warned not to repeat the same. However, the fact remains that the act committed by the applicants cannot be said to be a sudden act. Moreover, the accused no.1 caught hold of deceased and accused no.2 inflicted nine injuries on the person of the deceased, out of which there 4` were five stab injuries including the stab injury on the chest. Therefore, having regard to the nature of the injuries caused and the weapon used we are of the considered opinion that at this stage it is difficult for us to hold that the offence punishable under Section 304 read with Section 34 of the Indian Penal Code is made out against the accused and not under Section 302 read with Section 34 of the Indian Penal Code. It is well settled that only in exceptional circumstance the appellate court can suspend the substantive sentence imposed upon the accused convicted for murder. Mere fact that the applicants were on bail during the trial by itself would not be sufficient to suspend the substantive sentence pending appeal preferred by the applicants. Considering the facts and circumstances, we are of the considered opinion that this is not a fit case for suspending substantive sentences imposed on the applicants and releasing them on bail. For the reasons aforesaid, we find no merit in the application and hence the application is dismissed. JUDGE JUDGE patle 5`