appa855­10 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 855 OF 2010 IN CRIMINAL APPEAL (ST) NO. 468 OF 2010 Vilas Namdeo Kalamkar .. Applicant Vs The State of Maharashtra .. Respondent Ms. Indu Varma for the Applicant Mrs. U.V. Kejariwal, APP for the State CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATE : 30th JULY, 2010 ORAL ORDER [PER SMT. V.K. TAHILRAMANI, J]: 1. The applicant - original accused has been convicted by the Learned Additional Sessions Judge vide judgment and order dated 14.11.2009 in Sessions Case No. 234 of 2008 for the offence under Section 302 of IPC. The applicant is now seeking bail. 2. Briefly stated, the prosecution case is that the applicant - accused was married to Gauri. He was addicted to liquor. He used to ask Gauri for money to bring liquor and if she refused to give money, he used to quarrel with her. 1 appa855­10 It is further case of the prosecution that the accused assaulted his wife Gauri @ Kusum on her head with wooden log and caused her death. PW3 Ramesh Jadhav is the neighbour of the applicant and his wife Gauri. He has stated that on 27.07.2008 at about 07.30 to 07.45 p.m., when he was returning home, he heard quarrel going on between the applicant and his wife. Dead body of Gauri was found in the house of the applicant on 28.07.08 at 08.30 a.m. 3. The dead body of Gauri was sent for postmortem. PW 7 Dr. Sachin Gomsale performed the postmortem on the dead body of Gauri. He found two contused lacerated wounds over right parietal region. He also found superficial burns over left arrealer region, right hand and other parts of the body. Total burns over the dead body was 9%. On internal examination of dead body, PW 7 Dr. Gomsale found fracture of right parietal bone on the head i.e fracture to the skull. The brain matter was found congested having hematoma size 3 X 2 cms over right parietal region. According to him, death of the deceased was due to head injuries with fracture to skull with intra cranial hemorrhage. The fact that not one but two injuries were found on the head which have been caused with thick wooden log shows that the intention of the accused was if not that of causing death then at least of 2 appa855­10 causing such bodily injury which is sufficient in the ordinary course of nature to cause death. 4. It is the prosecution case that the accused assaulted his wife with wooden log. PW 4 Nitin Gaikwad is the pancha witness who has stated that wooden log came to be recovered at the instance of the accused. The said wooden log was hidden by him in his house. The log was found to have blood stains and hair. The blood stains on the wooden log were of 'B' group and the blood group of the accused is "O". The learned advocate for the applicant submitted that the recovery of wooden log cannot be stated to be a recovery under Section 27 of the Evidence Act. However, she has not disputed that the wooden log came to be seized from the house of the accused. In such case, finding of wooden log with blood stains on it in the house of the accused, moreover, the blood stains on the wooden log being found to be the same as that of the deceased, is in our opinion a incriminating circumstance against the accused. 5. The dead body was found in the house of the accused. It is for the accused, under Section 106 of the Evidence Act to explain as to how his wife Gauri sustained injuries and was found dead in the house. However, no explanation has been furnished by the accused - applicant. In fact, it is seen 3 appa855­10 that the accused tried to give false reason to the relatives of the deceased that his wife Gauri while cooking fell down and sustained burn injuries and died. We have already stated that the burn injuries found on the body were only 9% and death was not due to burns but due to injuries on the head caused by two blows with wooden log. 6. Looking to the above facts, we find that there is sufficient material to connect the applicant with crime. Hence, we are not inclined to grant bail. Application is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] 4 appa855­10 5