1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2136 OF 2010. IN CRIMINAL APPEAL NO.139 OF 2010. Maroti Piraji Khanzode and another. ... APPLICANTS. Versus The State of Maharashtra. ... RESPONDENT. ... Shri N.S. Ghanekar, Advocate for applicants. Shri N.R. Shaikh, A.P.P. for Respondent State. ... CORAM : S.B. DESHMUKH AND S.S. SHINDE, JJ. 19th July, 2010. PER COURT: 1. Heard learned Counsel for the parties. 2. The present applicants along with three other accused persons were charged and tried for the offence punishable under Sections 302, 498-A r.w. 34 of I.P.C. in Sessions Trial No.48 of 2008 by the Additional Sessions Judge, Hingoli. The trial Court, after appreciating the evidence brought on record on 2 behalf of the parties, delivered the judgment on 11th March, 2010. Accused No.1 Maroti, accused No.2 Vinod and accused No.4 Satyabhama are convicted for offence punishable under Section 498-A r.w. Section 34 of I.P.C. They are sentenced to suffer simple imprisonment for one year and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month. Accused No.1 Maroti, accused No.2 Vinod and accused No.4 Satyabhama are also convicted for having committed an offence punishable under Section 302 r.w. 34 of I.P.C. and each of them is sentenced to suffer imprisonment for life and to pay fine of Rs. 1000/-, in default, to suffer simple imprisonment for three months. Accused No.3 Gajanan and accused No.5 Laxmibai are acquitted of the offence punishable under Sections 498-A and 302 r.w. 34 of I.P.C. 3. Accused No.1 Maroti, accused No.2 Vinod and accused No.4 Satyabhama have filed Criminal Appeal No.139/2010 before this Court, which has been admitted. The learned Counsel for the applicants submitted that original accused No.4 Satyabhama has 3 been released on bail by this Court during pendency of appeal. 4. Two applicants i.e. original accused No.1 Maroti and No.2 Vinod are before this Court in this criminal application seeking suspension of sentence and release on bail. Indisputably, they were not on bail during trial. The learned Counsel for the applicants submitted that there is no direct evidence brought on record by the prosecution. The case of the prosecution is based on circumstantial evidence. The circumstances alleged by the prosecution are three in number. Homicidal death is the first circumstance considered and accepted by the trial Court. Discovery of the blouse allegedly used by the accused while committing crime under Section 302 of I.P.C. is the second circumstance accepted by the prosecution. According to him, the third circumstance is the motive behind the crime. 5. Homicidal death of the deceased Godavari is seriously disputed on behalf of the applicants. The learned Counsel for the applicants submitted that the material brought on record is not sufficient for 4 rendering the finding of death of Godavari as homicidal. According to him, death of Godavari is accidental. He took us through the post-mortem notes which are on record and also the evidence of the Medical Officer who proved the post-mortem notes. He has also pointed out the admissions given by the Medical Officer. According to him, the prosecution ought to have established homicidal death of deceased. However, the prosecution has failed to do so. He submitted that prima facie, the applicants are entitled for bail. 6. With the assistance of the learned Counsel present before the Court, we have seen the post- mortem report at page 35 of the compilation. In column 17 the injury is described as 1 cm x 1 cm, red irregular edges and horizontal. It is further mentioned that no bony irregularity was observed while performing necropsy. Column No.17 also shows abrasion at knee. Opinion in column No.22 for cause of death is recorded by the Medical Officer of General Hospital, Hingoli, which reads: “In our and R.M.O.’s opinion cause of death is due to pressing with some soft and thick object over nose and mouth so that her respiration is obstructed.” 5 7. P.W.1 Dr. Bhagwan s/o Ramji Pundge (Exh.19/1) is examined on behalf of the prosecution. The learned Counsel for the applicants points out the statement made in examination-in-chief by P.W.1 Dr. Pundge, which reads: “In our opinion the cause of death was due to asphyxia due to pressing with some soft and thick object over nose and mouth due to which her respiration was obstructed.” 8. We have seen the entire evidence of the P.W.1 Dr. Pundge, Medical Officer (Exh.19/1) with post- mortem report. On behalf of the accused, Mr. Gajanan is examined as defence witness. We have noticed and it is not in dispute that the defence witness Gajanan was tried along with other accused persons and after trial, he has been acquitted for the offences punishable under Section 498-A, 302 r.w. 34 of I.P.C. On behalf of the accused manifold defence is set up. Alibi is also one of the defenses set up by the present applicant No.1 Maroti and No.2 Vinod, father- in-law and husband of the deceased, respectively. Page 149 (Exh.54) is the explanation and/or the answers given on behalf of the accused Nos.1 to 5 under Section 313 of Cr.P.C. We have minutely 6 considered this explanation given on behalf of the applicants. 9. The date of occurrence, we have noticed, is 1st July, 2008. Exact time of occurrence is not brought on record by the prosecution. We have seen the observations of the trial Court in the judgment itself, the evidence of P.W.1 Dr. Pundge, Medical Officer and Mr. Gajanan, who is examined on behalf of defence. Prima facie, in our view, no case for grant of bail in favour of the present applicants is established. Since this is the application seeking suspension of sentence, we are not discussing or appreciating the evidence of the witnesses pointed out to us on behalf of the applicants. 10. In our view, no case is made out for suspension of the sentence and releasing the applicants on bail, who were not enjoying such concession during trial. Application is rejected. [ S.S. SHINDE ] [ S.B. DESHMUKH ] JUDGE JUDGE Kadam/*