1 APPA 578.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPLICATION NO. 578 OF 2011 IN CRIMINAL APPEAL NO. 918 OF 2010 Mr. Jamal Ahmed Nasib Mohamad Chowdhari Khan. ... Applicant. (Orig. Accused No.4) V/s. The State of Maharashtra (at the instance of Deonar Police Station). ... Respondent. ALONGWITH CRIMINAL APPLICATION NO. 819 OF 2011 IN CRIMINAL APPEAL NO. 176 OF 2011 Rukmini Kisan Narale. ... Applicant. (Orig. Accused No.1) V/s. The State of Maharashtra. ... Respondent. Mr. Ganesh Gole for Applicant (Accused No.4) in Appln.No. 578/11. Mr. Kedar J. Patil for Applicant (Accused No.1) in Appln.No. 819/11. Ms. S.V. Gajare, APP for the State. CORAM : NARESH H. PATIL & K.U. CHANDIWAL, JJ. DATED : 20th JULY 2011. 2 APPA 578.11.sxw P.C. :- Heard. 2. The Applicants - Original Accused No.1 Rukmini Narale and Original Accused No.4 Jamal Khan in Sessions Case No. 888 of 2006, were convicted for life alongwith two other accused have prayed for bail pending hearing and final disposal of Appeal. 3. The Original Accused No.1 Rukmini Kisan Narale is the wife of deceased Kisan Narare, Original Accused No.2 Ashok Tatoba Yamgar who was Head Constable at the relevant time attached to Chembur Police Station. The prosecution evidence indicates that Respondent Nos.1 and 2 wer closely associated and Original Accused No.2 was regular visitor to the house of Original Accused No.1, which was disliked by the deceased husband of Rukmini. The deceased had two children viz. Manisha and Sandeep. At the relevant time Manisha was aged about 15 years and Sandeep was aged about 8 years. It is the prosecution case that at the relevant time in the night intervening 15th and 16th April 2006, the incident of assault on the deceased took place. He was assaulted by Accused No.1 and Accused No.2 in the house. When the assault was going on, the Accused Nos.3 and 4 were present. Thereafter, the Accused Nos.3 and 4 brought the deceased outside, in the compound. There again, he was assaulted with a stone by Respondent No.3. 3 APPA 578.11.sxw 4. The learned Counsel appearing for the Applicant - Original Accused No.4 Jamal Khan, submitted that there are serious omissions in the deposition of PW-5 Manisha and PW-11 Sandeep, children of deceased and Original Accused No.1. They were tutored witnesses. Their evidence is not reliable. There was no motive for the Applicant to assault deceased or to help the Original Accused Nos.1 and 2 in commission of the crime. The Applicant was on bail during trial. 5. The learned Counsel appearing for the Applicant - Original Accused No.1, submitted that the entire prosecution case is based on confessional statement of Original Accused No.1 which he can not be read in evidence. In the absence of Magistrate being examined in Court, the evidence of child witnesses i.e. PW-5 and PW-11 was tutored one, according to the learned Counsel. The Applicant was on bail during trial. There was no recovery made from the Applicant. 6. The learned APP submitted that deceased Kisan was assaulted and died on 30th April 2006. The Police recorded statements of PW-5 Manisha and PW-11 Sandeep on 24th April 2006. Accused No.1 was arrested on 13th May 2006 and Accused No.4 was arrested on 2nd June 2006. The learned Counsel submits that due to pressure of mother, PW-5 Manisha and PW-11 Sandeep did not disclose all the facts and incident in detail to police. It was further urged that there is a strong prima-facie case made out by the prosecution against 4 APPA 578.11.sxw the Original Accused No.1 Jamal. The deceased suffered near-about 9 injuries and considering the gravity of the evidence, the Applications be rejected. 7. We have perused the original record for the purposes of consideration of the bail applications. Prima-facie, we notice that PW-5 Manisha and PW-11 Sandeep, while deposing before the Court have referred to the roles attributed to the Applicant Nos.1 and 2 in respect of assault made on the deceased while he was in his house. According to prosecution, the deceased was thereafter, taken out in the compound with the help of Accused Nos. 3 and 4. 8. While considering the present Bail Applications, we find that there is a strong prima-facie case made out against the Applicant - Original Accused No.1 Rukmini, wife of deceased, at whose instance the assault had taken place. The deceased died of homicidal death. The prosecution alleges that there was intimate relationship between the Accused Nos.1 and 2. The Bail Applications of the Original Accused No.2 Ashok Yamgar was rejected by this Court on 30th March 2011 (Criminal Application No.400 of 2011). We are not convinced to release the Applicant - original Accused No.1 on Bail. The Bail Application is rejected. 9. Considering the prosecution case, evidence and the submissions advanced, we are inclined to release the Applicant - Original Accused No.4 Jamal Khan on Bail by 5 APPA 578.11.sxw putting certain conditions. O R D E R (i) The Application No. 819 of 2011 filed by Original Accused No.1 is rejected. (ii) The order of sentence passed against the Original Accused No.4 is suspended. (iii) The Applicant - Original Accused No.4 Mr. Jamal Khan shall be released on bail in the sum of Rs. 25,000/- with one surety in like amount. (iv) The Applicant – Original Accused No.4 shall attend the concerned Police Station once in three months. (v) The Applicant – Original Accused No.4 shall not contact the prosecution witnesses while on bail. (vi) Violation of conditions of bail would entitle the prosecution to move for cancellation of bail of Original Accused No.4. 10. The Applications are disposed of. (K.U. CHANDIWAL,J.) (NARESH H. PATIL,J.) 6 APPA 578.11.sxw