1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 4245/2008 in Criminal Appeal No. 815/2008. Santosh s/o Suryabhan Choudhari .vs. The State of Maharashtra, through Police Station Officer, Police Station, Bhadravati. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. CORAM : A.P.Lavande & R.C.Chavan, JJ DATE OF RESERVING : 29.03.2010 DATE OF PRONOUNCEMENT : 07.04.2010 The applicant/appellant seeks suspension of his sentence and release on bail during the pendency of the appeal directed against his conviction for the offences under Sections 302 and 201 of the Indian Penal Code and sentence for imprisonment for life and R.I. for five years respectively imposed upon him by the learned Sessions Judge, Chandrapur for the two offences. 2. We have heard Mr. S.V.Sirpurkar, learned counsel for the appellant/ applicant and Mr. T.A. Mirza, 2` learned A.P.P. for the respondent and have gone through the record and proceedings of the trial court. The applicant is the husband of the victim who was found to have been killed by strangulation. Her dead body was dumped in the well. The applicant contended that his wife had gone to answer call of nature on the incidental night and since she had not returned within reasonable time he had contacted his father-in-law staying nearby. Next day the applicant gave missing report to the police. Later dead body of the victim was fished out from the well and the post mortem examination reveals that she had died, not of drowning, but of strangulation prior to being thrown in the well. 3. There was no direct evidence to connect the applicant to the crime. The applicant's father-in-law Shamrao, who was examined as P.W.1, supported the applicant rather than the prosecution and, therefore, was declared hostile. However, he admitted in the cross-examination on behalf of the prosecution that the relations between the victim and the appellant were 3` strained because the applicant suspected that the victim had illicit intimacy with one Mangesh Kharkar. P.W.2 Kishor who was also examined to prove the motive turned hostile. P.W.3 Pandurang was a panch at the inquest panchanama. P.W.4 Narayan took photographs of the dead body. P.W.5 Prashant was a panch to the memorandum, whereby the applicant is stated to have pointed out the place of incident. He turned hostile. In any case the utility of such memorandum would not be significant. P.W. 6 Kirankumar was panch on seizure of clothes worn by the accused on 5th September, 2006 i.e. about four days after the incident. These clothes were found to have stains of mud which tallied with the mud near the well from which victim's dead body was fished out. P.W. 7 P.S.I. Hasanali Sayyad conducted investigation, P.W. 8 Dr. Mayura Avtade conducted post mortem examination. P.W. 9 A.P.I. Sunil Oval took over the investigation from P.W. 7 P.S.I. Saiyyad. 4. The learned counsel for the applicant submitted 4` that even accepting the evidence as it is, the circumstances which would point out the complicity of the appellant, have not been property established and, therefore, pending hearing of the appeal the applicant be released on bail since the appellant/applicant may succeed in his appeal. He pointed out that the evidence of motive was vacillating. The applicant had promptly gone to his father-in-law in search of his wife and, therefore, could not be said to have attempted to mislead. He submitted that it was hard to believe that mud from the spot of incident would be found sticking to the clothes of the accused four days after the incident and that the applicant would be wearing same clothes from that day till even after he was arrested. 5. The learned A.P.P. submitted that the scrutiny of evidence at this stage is not warranted and evidence is appreciated by the learned Sessions Judge clearly indicates complicity of the applicant. 6. Considering the fact that the only 5` circumstance that may connect the applicant to the crime, which is clinching, is stains of mud from the spot on his clothes, pending hearing of the appeal, the sentence of imprisonment imposed upon the applicant deserves to be suspended on his furnishing P.R. Bond of Rs. 50,000/- with one or more solvent sureties in aggregate sum of Rs. 50,000/-. The application is allowed accordingly. JUDGE JUDGE patle