1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2866 OF 2009 Gorakh Baburao Munde ..APPLICANT VERSUS The State of Maharashtra ..RESPONDENT Mr S.M. Godsay, Advocate holding for Mr U.B. Bondar for the applicant; Mr V.D. Godbharle, A.P.P. for the respondent. CORAM : P.V. HARDAS AND R. K. DESHPANDE, JJ. DATE : 16th December, 2009 PER COURT : By this application the applicant/accused seeks suspension of the substantive sentence of imprisonment for life and his enlargement on bail pending the decision of this appeal. Undisputedly, the conviction of the appellant rests on the testimony of four eye-witnesses, who have been found by the Trial Court to be wholly reliable. In addition, prosecution had alleged three circumstances, which were (i) recovery of a mobile phone at the instance of the appellant in order to substantiate the contention of the prosecution that the accused and wife of the appellant had illicit relations, (ii) recovery of knife at the behest of the appellant and (iii) recovery of clothes of the accused which were found stained with 2 blood of group matching that of the deceased. 2. Mr S.M. Godsay, learned Counsel for the appellant has urged before us that the recovery of a mobile phone at the instance of the appellant is an innocuous circumstance and does not advance the prosecution case further. In fact, our attention has been invited to the observations of the Trial Court at paragraph 37 of the judgment in which the Trial Court has held that the seizure of the said mobile phone is of no consequence at all. It was next urged by Shri Godsay, learned Counsel for the appellant that the recovery of the knife at the instance of the appellant is also of no consequence as the Medical Officer in clear terms has opined that the knife Article 1 could not have caused the injury sustained by the deceased. It was next urged before us that the recovery of the clothes of the appellant at his instance cannot be relied upon in the light of the discrepant evidence in respect of the actual place of seizure. It is urged before us that the panch witness P.W.3 Kakasaheb has admitted that the clothes of the accused came to be seized from the residence of P.W.4 Laxman i.e. father of deceased while the evidence of the Investigating Officer and the contemporaneous document state that the clothes were recovered from the residence of the accused. It was also urged by the learned Counsel for the appellant that the prosecution has not been able to establish with any degree of accuracy the blood group of deceased as well as the seizure of the clothes of deceased. It was, therefore, urged that the substantive sentence of imprisonment be 3 suspended pending the decision of the appeal. The learned A.P.P. has urged before us that even if the three circumstances, namely recovery of the mobile phone, knife and the clothes of the accused are left out of consideration, there is strong evidence in the shape of testimony of four eye-witnesses. 3. According to us the learned A.P.P. has very rightly submitted that even if the three circumstances are left out of consideration, there is evidence of four eye-witnesses who have been found by the Trial Court to be reliable and on those testimony the conviction rests. Submissions of the learned Counsel for the appellant in respect of circumstances affecting the credibility of the eye-witnesses would amount to re- appreciating the evidence of the eye-witnesses, which cannot be done at this stage. Suffice it to say that there is strong evidence available in the shape of four eye-witnesses. It, therefore, cannot be said that the conviction is based on no evidence. In that light of the matter, therefore, we are not inclined to suspend the substantive sentence and order the enlargement of the appellant on bail, though the appellant is said to have been on bail during trial. Application is accordingly rejected. (R.K. DESHPANDE, J.) ( P.V.HARDAS, J.) amj/criap2866.09