DILIP LAXMAN KHANDEKAR Vs. STATE OF MAHARASTRA

JUDGEMENT

(1.) Heard. Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel for the rival parties. This is an application for suspension of sentence and grant of bail under Section 389 of the Code of Criminal Procedure. In support of the application, Mr. S.G. Loney, learned counsel for the appellant/applicant, submitted that the applicant was on bail during trial and there is no report whatsoever of he having misused the facility of bail that was extended to him during trial. He, then submitted that the applicant is original accused No. 7 against whom the only evidence that has come on record is that he was holding wooden stick. There is a vague evidence that the accused persons were beating the deceased and Ajay with wooden sticks but applicant No. 7 has not been specifically named. He then pointed out that the post-mortem report does not show a single injury due to stick. On the contrary, the post-mortem report and medical evidence shows that there were multiple stab injuries to the left lung. In the absence of any medical evidence, prima facie it cannot be believed that the applicant-accused had participated in the offence of murder in question. Thus, in the absence of specific evidence against the accused No. 7/applicant-Dilip, it would be appropriate to allow him an order of bail during the pendency of the present criminal appeal.

(2.) Per contra, Mr. M.K. Pathan, learned A.P.P. for non applicant-State, opposed the application and argued that participation of the applicant in the unlawful assembly is very much proved and therefore, it cannot be said that the applicant is innocent particularly having been found guilty by the trial Court. We have considered the evidence of the witnesses who were examined in the trial court in support of charge of murder against the applicant also. The evidence of witnesses namely PW 5, PW 6 and PW 8 consistently show that accused No. 7/applicant-Dilip was holding the stick. There is a general statement by all the witnesses that all the accused were beating the deceased and Ajay. Perusal of post-mortem report and the medical evidence however does not show single injury by means of stick but it shows stab injury due to which the death occurred. In the above background and looking to the pendency of criminal appeals in this Court, we are of the considered opinion that an order releasing the applicant on bail deserves to be passed. Hence, we make the following order.