The court disposed of an application for suspension of sentence and bail. Finding witnesses credible and the weapon unrecoverable insignificant, the application was rejected.
Application for suspension of sentence and grant of bail rejected.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO. 792 OF 2010
IN
CRIMINAL APPEAL NO. 602 OF 2010
(Gaju @ Gajanan Vishwanath Sonwane & another Vs. The State of Maharashtra)
Office notes, Office Memoranda of
Coram, appearances, Court's orders
Court's or Judge's Orders.
or directions and Registrar's orders.
Mr. Shriniwas Deshpande, Advocate for the applicants. Mrs. B. P. Maldhure, APP for the respondent-State.
CORAM : A. H. JOSHI & A. R. JOSHI, JJ. DATED : 15 DECEMBER, 2010.
1.This is an application for suspension of sentence
and grant of bail.
2.Applicants were permitted to file copies of
depositions as may be relied upon by them for the purpose
of present application.
3.The learned Advocate for the applicants has placed
on record copies of three depositions of P.Ws. 1, 2 and 3.
4.Admittedly, the testimony of P.W.-2 has not been
given any credit by the Sessions Judge.
5.The conviction is based on the testimonies of
P.W.-1 and P.W.-3.
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6.The learned Advocate for the applicants has
emphasized on the unworthiness of credit of these two
witnesses urging that :-
(a) These witnesses are; wife and daughter of
the deceased, respectively, and being interested,
their evidence ought not to have been relied upon
by Sessions Court.
(b) Testimony of P.W.-1 is unworthy to rely
upon since involvement of both the accused together
is not distinctly narrated and cannot be believed.
(c) P.W.-3 cannot be trusted as an eye witness
because she was away from the spot of incident and
the same was not visible from her house.
(d)One amongst the weapons of assault, i.e.
stone has not been recovered.
7.We have read the testimonies of these witnesses,
and reasons contained in the order of conviction and
sentence.
8.We find that P.W.-1 has in very precise manner
narrated the incident. Her testimony could have been
rendered unworthy by bringing on record in cross
examination any material which would discredit her or
create doubt about vital attack which has resulted into
death.
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9.In so far as worthiness of P.W.-3 is concerned,
her testimony has corroborative value to the testimony of
P.W.-1 who herself is an injured and an eye witness whose
testimony cannot be brought into doubt. The criticism on
the testimony of P.W.-3 that she could not have viewed the
incident is an argument unsupported by any other statement
in her testimony. It is not proved or suggested that
P.W.-3 could not or did not see the incident. At this
stage, the conviction based on these two eye witnesses is
well founded.
10.In so far as the fact of stone as weapon of
assault is concerned, it is not shown that the assault by
stone, alone, was the cause of death, and other weapons
were totally insignificant in said background.In absence
of these circumstances being demonstrated, the fact that
the stone was brought before the Court to prove it to be
the weapon of assault, said failure is rendered totally
insignificant.
11.Nothing further useful for defence has been
elicited in the cross examination, and therefore, argument
that P.W.-1 and P.W.-3 are unworthy witnesses cannot be
relied upon and hence applicants have case for bail on this
ground is an argument without any basis.
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12.In this background, upon perusal of the judgment
and evidence and the discussion here-in-above, we are
satisfied that the applicants do not have a case for
suspension of sentence and grant of bail.
Application is rejected.
JUDGE JUDGE
wwl
2 issues framed by the court
Whether the application for suspension of sentence and grant of bail should be allowed given the credibility of prosecution witnesses.
Whether the failure to recover the weapon of assault (stone) invalidates the conviction and warrants bail.
Gajanan Vishwanath Sonwane
A. H. JOSHI
A. R. JOSHI
As recorded by the court registry
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