1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.3099 OF 2009 IN CRIMINAL APPEAL NO.418 of 2009 Govind s/o Balasaheb Karhale ... APPLICANT VERSUS State of Maharashtra ... RESPONDENT ----- Shri S.B. Bhapkar, Advocate for the applicant Shri S.D. Kaldate, A.P.P. for the respondent ----- CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 7th October, 2009. ORAL ORDER (PER DAVARE, J.) : 1. By the present application, the applicant/ accused has prayed for suspension of substantive sentence and for enlargement on bail during the pendency of the appeal, which has been filed by him challenging the judgment and order rendered by learned Additional Sessions Judge, Parbhani in Sessions Trial No.133/2008 on 13.8.2009, convicting the applicant/ accused under Section 498-A and Section 302 of the Indian Penal Code and sentencing him to 2 suffer R.I. for two years and life imprisonment respectively and also fine therefor. 2. It is alleged that the marriage of deceased Shakuntala and the applicant/ accused took place about 8 years back. They were blessed with two daughters. It is also alleged that the applicant/ accused did not like the deceased Shakuntala since she was having black complexion and she was not doing household work properly and, therefore, the applicant/ accused used to ill-treat her physically and mentally. It is also alleged that the applicant attempted to commit murder of deceased Shakuntala earlier also by hanging her, but villagers saved her. 3. It is alleged that, on the night in between 17.2.2008 and 18.2.2008, the applicant/ accused inflicted axe/ iron rod blows upon the person of victim Shakuntala and committed her murder. The complaint was lodged by the uncle of the victim. Accordingly, investigation was carried, applicant/ accused was arrested and charge sheet was filed and applicant/ accused was charged and tried under Sections 498-A and 302 of the Indian Penal Code and came to be convicted thereunder and was sentenced for the said offences as aforesaid. Being aggrieved and dissatisfied by the said judgment and order dated 13.8.2009 delivered by learned Additional Sessions Judge, Parbhani, the applicant/ accused has preferred the Criminal 3 Appeal and by the present Criminal Application, prayed for bail during the pendency of the said appeal. 4. Shri Bhapkar, learned counsel for the applicant/ accused argued that the prosecution has not examined the complainant himself, which is the lacuna in the prosecution case. The learned counsel further submitted that, there is no evidence produced on record in respect of earlier attempt to murder of deceased Shakuntala at the hands of the applicant/ accused as alleged by the prosecution. The learned counsel further submitted that the applicant/ accused was not present in the house at the time of occurrence of the incident and none of the witnesses of the prosecution has deposed that the applicant/ accused was present in the house at the time of occurrence of the incident. It was also canvassed that the alleged discovery of iron rod/ axe at the instance of the applicant/ accused has not been proved since P.W.7, memorandum panch has turned hostile. The learned counsel for the applicant further submitted that the applicant has taken the defence of insanity and stated so in his statement recorded under Section 313 of the Code of Criminal Procedure. 5. Accordingly, the learned counsel for the applicant canvassed that the entire case of the prosecution is rested upon the circumstantial evidence since there is no direct evidence regarding 4 occurrence of incident, and the link of the said circumstantial evidence has not been connected unerringly, but still the learned trial Judge has arrived to the conclusion that the applicant/ accused was guilty for the charges levelled against him and the said finding is erroneous and hence, requested to enlarge the applicant/ accused on bail during the pendency of the said appeal. 6. Shri Kaldate, learned A.P.P. submitted that the incident occurred during the night i.e. in between 17.2.2008 and 18.2.2008 and, therefore, the death of deceased Shakuntala can be construed as custodial death and the applicant/ accused has not given any explanation in that respect and provisions of Section 106 of Evidence Act can be very well invoked. As regards the plea of insanity which was tried to be put forth by the applicant/ accused in his statement under Section 313 of the Code of Criminal Procedure, the learned A.P.P. submitted that the applicant has failed to discharge the said burden of proof under Section 105 of Evidence Act. It is also pointed out by learned A.P.P. that the C.A. report discloses that the blood group of deceased was of AB group and the clothes of the accused bore the blood stains of same group and, therefore, nexus can be established between the guilt and the applicant herein and pertinently the applicant/ accused has not given any explanation in that respect in the statement under Section 313 of the Code of Criminal Procedure. Accordingly, learned A.P.P. submitted that there 5 is no substance in the present application and, therefore, same be rejected. 7. We have perused the record and proceedings, which was made available for our inspection and perusal. We have also perused the ocular as well as medical evidence on record and considered the submissions advanced by both the learned respective counsel for the parties. The prosecution has examined P.W.1 Dr. Ritesh Agrawal, who performed the post mortem of the dead both of deceased Shakuntala and produced the post mortem notes at Exh. 11. The following injuries are mentioned on the dead body of deceased Shakuntala: (i) CLW oblique over (u) side of forehead extending from midline to tempal 11 x 4 x 5 cm., margins Blunt. (ii) Depressed # frontal Bone fracture. 7 x 4 cm. with chips of Bone lost. (iii) CLW tempal Bone 5 x 4 x 5 cm. (iv) CLW Fronto parietal region 8 x 4 x 5 cm. # Depressed Fronto parietal region. (v) CLW (u) side of cheek 7 x 4 x 3 cm. (vi) # Maxilla (u) side with bone exposed. The cause of death is stated to be Death Due to Intracranial 6 Haemorrhage due to Head injury. Considering the said medical evidence, it is apparently clear that victim Shakuntala succumbed to homicidal death. 8. It is also seen from the evidence of P.W.3 Balasaheb Karhale i.e. father of the applicant/ accused that at the relevant time, his son, son’s wife Shakuntala and their daughter Durgeshwari, aged 3 years were present in the house. Hence, apparently, it appears that the death of deceased Shakuntala was custodial death and the applicant/ accused has not given any explanation in that respect in his statement under Section 313 of the Code of Criminal Procedure and provisions of Section 106 of Evidence Act can be very well invoked. 9. It is pertinent to note that although the applicant has taken the plea of insanity in his statement under Section 313 of the Code of Criminal Procedure, the applicant has failed to produce and prove the medical case papers in that respect during the course of evidence since the burden of proof thereof was upon the applicant under Section 105 of Evidence Act, which apparently the applicant failed to discharge. 10. Moreover, it is also material to note that the blood group of deceased Shakuntala was of AB group as per C.A. report (Exh. 7 45) and the clothes of the accused bore the stains of blood of AB group and the applicant/ accused has failed to give explanation in that respect in his statement under Section 313 of the Code of Criminal Procedure. 11. Accordingly, having the comprehensive view of the matter and also after considering the submissions advanced by learned counsel for the parties, we are of the considered view that prima facie there is evidence against the applicant herein and this is not a fit case to enlarge the applicant on bail and hence, present application deserves to be rejected and same stands rejected accordingly. 12. Record and proceedings be sent back to the trial Court forthwith. [ SHRIHARI P. DAVARE, J.] [ NARESH H. PATIL, J.] fmp/cri3099.09