1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4286 OF 2009 IN CRIMINAL APPEAL NO.12 OF 2010 Rajendra s/o Shivaji Avhad .. Applicant Versus The State of Maharashtra .. Respondent Shri M.V.Ghadge, Advocate holding for Shri A.P.Avhad, Advocate for applicant Shri K.J.Ghute Patil, A.P.P. for respondent-State CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE : 21st January 2010 PER COURT : 1. Perused. Heard learned Counsel for the parties. 2. By the present application, the applicant/accused seeks suspension of substantive sentence inflicted upon him by the learned Sessions Judge, Ahmednagar in Sessions Case No.200/2008 on 11.9.2009 and also seeks his enlargement on bail. The applicant/accused was charged for offence punishable under Section 498A and Section 302 of the Indian Penal Code and came to be convicted and sentenced thereunder and he was directed to undergo the imprisonment for one year and to pay fine of Rs.1,000/- with a default condition of undergoing rigorous imprisonment of one month for non- payment of fine, for the offence punishable under Section 498A of the Indian Penal Code and was also sentenced to suffer imprisonment for life 2 and to pay fine of Rs.3,000/- with a default condition of undergoing rigorous imprisonment for three months for non-payment of fine, for the offence punishable under Section 302 of the Indian Penal Code, respectively. 3. Briefly stated the prosecution case is that the applicant/accused married with deceased Reshma in the year 2000 and they were blessed with one son and a daughter out of the said wedlock. It is alleged that the applicant used to ill-treat the victim Reshma on account of non-fulfillment of unlawful demand of Rs.20,000/- to be brought by her for the construction of the house. It is further alleged that on 11.7.2008 deceased Reshma was found dead in her house at Jawala and her dead body was found kept in front of the house. The mother of the victim, i.e. P.W.4 Suman lodged the complaint in that respect and investigation was set into motion and after completion thereof charge-sheet was filed and applicant/accused faced the trial under the above referred sections and came to be convicted and sentenced as aforestated. 4. The learned Counsel for the applicant has urged that there is no direct evidence to connect the applicant with the crime and the prosecution case is based entirely on circumstantial evidence and the prosecution has failed to prove each and every circumstance against the applicant/accused and the prosecution has failed to prove the nexus between the alleged incident and circumstantial evidence to connect the accused with the said crime. The learned Counsel for the applicant also 3 canvased that the medical evidence adduced by the prosecution through P.W.6 Dr.Munde discloses the cause of death as Asphyxia due to strangulation. There is no record to show the involvement of the applicant/accused in the alleged strangulation. The learned Counsel for the applicant further submitted that the applicant was granted bail during the trial but due to his poor condition and paucity of funds he could not avail the bail. Hence, the learned Counsel for the applicant urged that applicant be released on bail during the pendency of the appeal. 5. The learned Assistant Public Prosecutor opposed the bail application vehemently and submitted that although there is no direct evidence, the prosecution has adduced and produced the circumstantial evidence on record and the learned trial Judge accepted the same and convicted and sentenced the applicant rightly and the learned Assistant Public Prosecutor supported the judgment and order rendered by the learned trial Judge. The learned Assistant Public Prosecutor also pointed out from the medical evidence of P.W.6 Dr.Mundhe that the stomach of the victim Reshma was empty and deceased died six hours after her last meal and, therefore, it is apparent that the victim expired in the midnight and, therefore, the death of deceased Reshma is the custodial death under the special knowledge of the applicant and the applicant has failed to give the explanation therefor. The learned Assistant Public Prosecutor also pointed out from the medical evidence the cause of death of deceased Reshma as Asphyxia due to strangulation and the Medical 4 Officer has specified the difference between hanging and strangulation and stated that in case of hanging the ligature marks are incomplete, while they are completely encircling the neck in case of strangulation. In the instant case the death of the victim occurred due to strangulation and submitted that present applicant is not entitled to be enlarged on bail. 6. We have perused the record and proceedings and have considered the submissions advanced before us by the learned Counsel for the applicant and learned Assistant Public Prosecutor for the State. To substantiate the charges levelled against the applicant, the prosecution has examined inasmuch as eight witnesses and considering their evidence and medical evidence adduced and produced on record, we are of the opinion that there is prima facie case against the applicant and, therefore, the applicant is not entitled to be released on bail. Besides that the submissions advanced by the learned Counsel for the applicant pertain to re-appreciation of evidence which cannot be done at this stage. The applicant, therefore, is not entitled to be released on bail. 7. In the circumstances, the application which is sans merit deserves to be rejected and the same stands rejected accordingly. ( SHRIHARI P. DAVARE, J.) ( P.V. HARDAS, J.) (vvr/4286.2009criappln) 5