1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1942 OF 2009 IN CRIMINAL APPEAL NO.287 OF 2009 Baban S/o Goprao Maske ... Applicant. Versus The State of Maharashtra ... Respondent. -------- Shri. Hanmant V. Patil, Advocate for applicant. Shri. S.D. Kaldate, Additional Public Prosecutor, for respondent - the State. -------- CORAM: NARESH H PATIL & SHRIHARI P DAVARE,JJ. DATE: 4th SEPTEMBER 2009 ORAL ORDER (PER SHRIHARI P DAVARE, J.) :- 1) Heard learned counsel for the applicant and learned Additional Public Prosecutor for the respondent – State. 2) Perused the record. 2 3) By the present application, the applicant / appellant prays for suspension of substantive sentence awarded by the learned Additional Sessions Judge Hingoli in Sessions Case No.3 of 2007 on 21st April 2009 and to enlarge him on bail. 4) It is alleged that the victim Trivena, a divorcee, was keep of the applicant, who allegedly demanded share in the property of the applicant and, therefore, the applicant murdered her. A missing report came to be lodged by father of the victim Trivena on 28-2-2006 and consequently a complaint was registered on 2-3-2006. The applicant was arrested on the same day during the course of investigation. After completion of investigation charge sheet came to be filed and the applicant / accused was charged for offence punishable under sections 302 and 201 of the Indian Penal Code. He was tried for the said charges in Sessions Case No.3 of 2007 and was convicted and sentenced to suffer 3 imprisonment for life and to pay fine of Rs.5000 with default clause and to suffer rigorous imprisonment for five years and to pay a fine of Rs.2000 with default clause respectively. 5) Being aggrieved and dissatisfied by the said judgment and order the applicant / accused preferred the accompanying appeal which is pending and by this application the applicant prays for bail during pendency of the appeal. 6) The learned counsel for the applicant submits that to substantiate the charge levelled against the applicant the prosecution has examined in as much as ten witnesses. However, there is no direct evidence and the prosecution case is based upon circumstantial evidence mainly on the ground of last seen together the applicant and the victim. In the said context, it is submitted that the evidence in that respect is feeble as PW 1 has stated that the accused was seen with the victim before two months prior to the alleged incident and nobody had seen the 4 victim and the applicant together during last two months. In this respect it is further submitted that PW 10 Dr. Namdeo Korde had stated that the injuries disclosed on the dead body were of one month old. Hence it is submitted that there is wide gap of two months between the incident and the applicant and the victim were last seen together. The learned counsel has placed reliance on paragraph 14 of the reported judgment of the Hon’ble Supreme Court in Chattar Singh v. State of Haryana, 2008 IR SCW 7426. We reproduce para 14 : “14. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows: "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a 5 long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2." 7) The learned counsel for the applicant further submitted that it is alleged that the discovery of the dead body of deceased Trivena was at the instance of the applicant herein. However, there is no nexus between the DNA & CA reports. It seems that, the dead body was allegedly identified on the basis of saree, bangles and “Jodva”. However, PW 8 – Laxman Ganpatrao Waikule stated in the deposition that there was only skeleton i.e. a decayed skeleton without flesh on it was found. Hence, it is submitted that the circumstance is under suspicion. 6 8) The learned counsel for the applicant also submitted that there are discrepancies in the evidence in respect of time of the complaint which is 12.00 hrs. of 2nd March 2006 and the time of arrest of the applicant is also the same i.e. 12.00 hrs of 2nd March 2006, and pertinently, the discovery panchnama under section 27 of the Evidence Act is recorded at 12.05 hrs. on the same day i.e. 2nd March 2006. In the said context, the learned counsel for the applicant canvassed that the evidence of PW 2 Shri. Gajanan Shinde, Naib Tahsildar disclosed that he had received a letter from the investigating officer earlier to the arrest of the applicant. Hence the learned counsel submits that the said evidence does not inspire confidence. The learned counsel also submitted that the applicant was on bail during pendecy of the trial and was taken into custody after inflicting the aforesaid conviction and sentence which is challenged in the accompanying 7 appeal. The learned counsel therefore urged that the applicant be enlarged on bail since he has got a good case in the appeal. 9) Shri. S.D. Kaldate, learned Additional Public Prosecutor vehemently opposed the present application and submitted that the missing report was filed by the father of the deceased Trivena on 28-2-2006 and investigation was started on the basis of the said missing report. Therefore, it is submitted that there is no force in the arguments advanced by the counsel for the applicant that there are discrepancies in the timings of filing of complaint, arrest of the applicant and recording of panchanama under section 27 of the Evidence Act in respect of discovery of dead body of deceased Trivena. The learned APP also submitted that the dead body was recovered at the instance of the applicant / accused, which is a prime incriminating circumstance against the applicant herein. The learned APP further submitted that PW 4 – Uttam 8 Sitaram Pole, father of the deceased Trivena, had deposed that the applicant and deceased Trivena were residing together which also amounts to an incriminating circumstance against the applicant herein. The learned APP submitted that the trial Court has rightly convicted and sentenced the applicant and therefore the present application for bail be rejected. 10) We have perused the record and proceedings which was made available to us. We also perused the occular and medical evidence and also perused the impugned judgment of the trial Court. We gave anxious consideration to the submissions made by both the learned counsel. 11) At the outset, admittedly, there is no direct evidence led by the prosecution to connect the applicant / accused with the commission of the crime, and accordingly, the prosecution case is based upon circumstantial evidence. As regards the main circumstance alleged against the applicant i.e. applicant and the victim were last 9 seen together, apparently the evidence in that respect on record discloses that there is wide gap of two months and reliance can be very well placed on the observations made by the Apex Court in the case of Chattar (cited supra). 12) As regards the identification of the dead body PW 8 panch Laxman has specifically stated in his deposition that only a decayed skeleton without flesh on it was recovered and no corpse was recovered and the dead body was identified on the basis of saree, bangles and Jodwa only. In this respect the counsel has placed reliance on a judgment of the Division Bench of this High Court in Ramaji Deu Labad v. State of Maharashtra, 2007 ALL MR (Cri) 2226. 13) Although it is a matter of appreciation of evidence apparently PW 2 Mr. Shinde, Naib Tahsildar received a letter from the investigating officer prior to the recoding of the complaint on 2nd March 2006 at 12.00 noon. The applicant was arrested on the same day i.e. 2nd 10 March 2006 at 12.00 noon and the discovery panchanama under section 27 of the Evidence Act was recorded at 12.05 hrs. on 2nd March 2006 which also is a matter of curiosity. 14) In the circumstances we are of the considered view that this is a fit case in which the applicant is required to be enlarged on bail during pendency of the appeal. Hence it is directed that the applicant be released on bail in the sum of Rs.15,000/- (rupees fifteen thousand) with one solvent surety in the like amount and on condition that the applicant shall give attendance before Basamba Police Station,District Hingoli once in a quarter till disposal of the appeal. 15) The application stands disposed of accordingly. The Record and proceedings be sent back to the lower court forthwith. (SHRIHARI P. DAVARE, J.) (NARESH H PATIL, J.) rsl/ crapln.1942.09