1 crim.appln.4835-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4835 OF 2010 Mr.Harishchandra @ Harish Basawan Choudhari ...Applicant vs. The State of Maharashtra ...Respondent Ms.Padma Tatode for the Applicant. Smt.P.H. Kantharia, APP for the Respondent-State. CORAM : J.H. BHATIA, J. DATED : NOVEMBER 23, 2010 P.C. :- 1 The present applicant who is accused no.2 in Crime No.187/2010 registered by Goregaon (East) Police Station for the offences punishable under Sections 302, 201 read with 34 of the IPC, has made this application for bail. 2 Prosecution case in brief is that deceased Shilpa was having illicit relations with one 2 crim.appln.4835-2010 Vijaykant Srivastava residing at B-114, Prabhat Co- operative Housing Society, Kandivali (East), Mumbai. Accused no.1 Nilam is wife of said Vijaykant Srivasta. The present applicant, who is accused no. 2, appears to be acquainted with said Nilam. According to prosecution, on 11th June, 2010 at about 10 a.m., Nilam, present applicant and deceased went to the house of Nilam. After sometime, the present applicant Harishchandra left the house. Accused No.1 Nilam called him back by uttering Harish, Harish but the present applicant did not return to the house of Nilam and went away. At about 3.30 p.m., said Nilam arranged for a tempo by making representation that she wanted to take some luggage to Dadar. In the said tempo, a heavy trunk was loaded with the help of the driver of the said tempo and one more person, who was possibly a coolie. On the way, accused no.1-Nilam disclosed to the driver of the tempo that the said trunk contained a dead body. She asked him to stop the vehicle and on the way, the said trunk was thrown away by the side of 3 crim.appln.4835-2010 the road. Later on, the said trunk and the dead body in it were found by one Naim Khan, who lodged FIR. Dead body was identified to be of Shilpa. As per the post mortem report, she had died of asphyxia due to compression of neck. Several injuries were found around her neck and some small injuries on other parts of the body. Body was recovered from the trunk on 12th June, 2010 and post mortem was conducted between 6 to 7 pm on the same day. It revealed that the death had occurred more than 24 hours prior to post mortem examination. Nilam was arrested and her medical examination on 18th June, 2010 revealed that she had also suffered several injuries on different parts of the body and most of them were nail marks. From the facts and circumstances collected by the police during investigation, it appears that Shilpa was probably murdered sometime about 10 and 11 a.m. on 11.6.2010. 3 According to the learned Counsel for the applicant-accused no.2, there is no material to 4 crim.appln.4835-2010 connect the present applicant to this offence. 4 On the other hand, according to the prosecution, there are two witnesses to connect the present applicant with the commission of the offence and show his presence in the house of accused no.1 Nilam at the time when the murder was probably committed. One of them is Subedar Pathake who was a watchman. According to him, on that day, at about 10 a.m., he had seen Nilam, accompanied by one woman and one boy, entering into the building. After sometime, the boy came out of the building. At that time, from the first floor, Nilam called him saying Harish, Harish . However, said boy did not return back and therefore, said witness presumed that name of the said boy might have been Harish. Another witness is Mishi, daughter of accused no.1. She had seen Shilpa coming to the house at about 9.45 a.m. According to her, Shilpa went in the house and sat on the bed, after that her mother Nilam came out and from the side of the stair case, she made a call 5 crim.appln.4835-2010 Harish, Harish , but nobody came there. 5 Even though the investigation has been completed and the charge sheet is filed, admittedly, the Investigating Officer did not bother to hold identification parade so that witnesses Subedar Pathake and Nishi could be required to identify the present applicant to find out whether who is the same person who had come to the house and who was called as Harish. As far as throwing away of the dead body in the trunk is concerned, it appears that for loading the trunk, Nilam had taken the help of the driver of the tempo and one coolie. Nobody has referred to the present applicant. In view of these circumstances, the accused deserves to be granted bail. 6 For the aforesaid reasons, the applicant/accused no.2 be released on execution of P.R. Bond in the sum of Rs.25,000/- with one surety in the like amount with condition that he shall not 6 crim.appln.4835-2010 tamper with evidence and shall not misuse the bail and also that he shall report at Goregaon (East) Police Station on every Sunday between 11 a.m. and 12 noon. 7 Application stands disposed of, accordingly. (J.H. BHATIA, J.)