1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 272 OF 2010 IN CRIMINAL APPEAL NO. 771 OF 2009 Awinash @ Awaya Dagdu Kale .. Applicant Vs The State of Maharashtra .. Respondent D.H. Kumthekar for the Applicant Mr. S.S. Pednekar, APP for the State CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 31st MARCH, 2010 P.C.: 1. The applicant was tried in Sessions Case No. 43 of 2007 for offences punishable under section 302 and 201 of IPC. It may be stated here that there are two other accused who are still absconding and hence, they could not be tried for the above offences. By the impugned judgment, the applicant was interalia convicted under section 302 of IPC and sentenced to life imprisonment. His appeal has been admitted. This is his application for bail. 2. The prosecution case is that the applicant was living with deceased Sumi. According to the prosecution, brother of the applicant was murdered few years prior to the incident. The applicant and the deceased were witnesses 3.appa272­10 2 to the murder. Brother of the deceased and brother-in-law of the deceased were the accused in the said case. It is the case of the prosecution that the deceased was not ready to rope in her brother and brother-in-law in that murder. The applicant was insisting that she should not turn hostile. She had decided to leave the company of the applicant and reside with her brother-in-law Jakhlya. This according to the prosecution is the motive. 3. According to the prosecution, the deceased left the house of the applicant on 23.12.2006. Her dead body was found in the canal on 27.12.2006. As the deceased was missing, her father PW8 Khatpatya forwarded an application to the D.S.P. Satara on 05.06.2007. It was received by the P.S.O. of Police Station Natepute on 14.07.2007. In the first week of August 2007, the applicant was called and interrogated by Natepute Police. A.P.I. Pimpri lodged complaint on 07.08.2007, registered the offence and the applicant was arrested on the very day. 4. According to PW8 Khatpatya after 2/3 months, he got to know that a dead body was recovered by the police. He went to the police station. The police showed him clothes of the deceased. After seeing the clothes, he confirmed that dead body was that of his daughter. The prosecution has examined two witnesses PW8 and PW9 i.e father and mother of the deceased to establish that there was quarrel 3.appa272­10 3 between the applicant and the deceased on 23.12.2006 in the morning and she left the house at 3.00 p.m.. But the prosecution has not led any evidence to establish that the applicant and the deceased were last seen together. Apart from the alleged motive, the only circumstance on which the prosecution is relying is the alleged recovery of bike which is stated to have been used by the applicant in the commission of the offence. The trial Court has concluded that the fact that the appellant did not lodge complaint about the missing of his wife for six months indicates that he was involved in the murder of the deceased. We are unable to draw such inference in the absence of clinching evidence against the applicant. 5. Prima facie, it appears to us that the prosecution has not led any cogent evidence to establish its case against the applicant. No witness has stated that the applicant and the deceased left the house together. Prima facie, there is no evidence to substantiate the case that the applicant along with other committed murder of the deceased, poured acid on her face and threw the dead body in the canal. There is no evidence on record to establish the link. The prosecution is stated to have recovered a bike. But prima facie, there is nothing to indicate that the applicant used the bike in commission of the offence. 6. The applicant is in jail for last about three years. 3.appa272­10 4 Therefore, in the circumstances of the case, in our opinion, he should be released on bail. Hence, the following order : O R D E R 1. The applicant – Awinash @ Awaya Dagdu Kale is ordered to be released on bail in the sum of Rs. 20000/- [ Rs. Twenty Thousand Only ] with one or two sureties to make up the said amount. 2. While on bail, the applicant shall report to the Lonan Police Station once in a fortnight. Needles to say that if he does not attend the police station as directed, his bail will be liable to be cancelled. 3. Application is disposed of. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] 3.appa272­10 5 3.appa272­10