1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR Cr. Application No. 204/2009 in Cr. Appeal No. 432/2005 Sheikh Rashid s/o Sheikh Yakub Vs. State of Mah. Office Notes, Office Memoranda of Coram, appearances, Court’s orders of directions Court’s or Judge’s orders and Registrar’s orders Coram : A.P. Lavande & Prasanna B. Varale, JJ. Reserved on : 26th June, 2009. Pronounced on 30th June, 2009. Heard Mr. Patwardhan, learned counsel for the applicant and Mr. Mujumdar, learned APP for the respondent. By this application, the applicant, who has been convicted for having committed offence punishable under Section 302 of the Indian Penal Code by judgment and order dated 9th August 2005 passed by 5th Additional Sessions Judge, Nagpur in Sessions Trial No. 67/1998 seeks suspension of sentence and bail. It is the case of the prosecution that the applicant had committed murder of his wife Rehana by pouring kerosene on her and setting her ablaze on 15.8.1997. In the course of trial, the prosecution examined several witnesses to prove the case against the applicant. The trial Court held that offence was made out against the applicant. The learned Judge relied upon the evidence of Irshad son of the accused and Rehana as well as medical evidence which proves that deceased Rehana had suffered 100% burn injuries. 2 Mr. Patwardhan, learned counsel for the applicant submitted that it is difficult to believe that Irshad was present in the house on 15.8.1997 which was holiday and, therefore, he cannot be believed. Moreover, Mr. Patwardhan submitted that at the relevant time Irshad was only three years old and as such it is difficult to believe that when he was at the age of 10 years he remembered the incident and deposed about the incident which had occurred seven years’ back. He further submitted that the evidence on record is not sufficient to bring home charge to the accused. He further submitted that the parents of the applicant are old and they are not in a position to look after Irshad, who is now of the age about 15 years. Learned counsel further submitted that the applicant was on bail pending the trial and he did not misuse the liberty granted to him. He, therefore, submitted that this is a fit case in which substantive sentence deserves to be suspended and the applicant released on bail. Per contra, Mr. Mujumdar, learned APP submitted that the accused has taken defence of alibi and the accused has not discharged the burden of proving alibi. He further submitted that the evidence of Irshad whose presence at the spot was quite natural cannot be doubted and there is absolutely no reason for Irshad to depose against his father. He further submitted that there is ample evidence on record that the relation between the deceased and the accused were not cordial and the accused was ill-treating the deceased. He, therefore, submitted that having regard to the nature of the crime, this is not a fit case for suspension of sentence and 3 grant of bail. Having considered the submissions made by learned counsel for the applicant and learned APP and having perused record, we are of the considered opinion that this is not a fit case for suspension of sentence and grant bail to the applicant. Prima facie, we find it difficult to accept the submission of Mr. Patwardhan that the evidence of Irshad cannot be accepted. No doubt, he was about 3 years old at the time of commission of the offence but there is absolutely no reason why Irshad should falsely implicate his father in commission of murder of his mother. Moreover, there is evidence on record of Sheikh Afaroz (PW 4) who was staying in the neighbourhood of the accused that the applicant was ill treating his wife Rehana and was also assaulting her. Indisputably, the deceased had suffered 100% burn injuries. The defence of alibi taken by the accused/applicant during the course of the trial has been rightly disbelieved by the learned Judge. There is sufficient evidence on record to prove offence punishable under Section 302 of the Indian Penal Code against the applicant. Insofar as the argument of Mr. Patwardhan that the applicant was on bail pending the trial and he did not misuse the liberty is concerned, we find no merit in the said submission. The Apex Court in a catena of the decisions has held that mere fact that the applicant was on bail during the trial and he did not misuse the liberty granted to him, by itself, is not sufficient to grant suspension of sentence in a murder case. Having regard to the nature of crime and the manner in 4 which it was committed, we are not inclined to suspend the substantive sentence and grant bail to the applicant. The argument of Mr. Patwardhan that the applicant has aged parents and there is nobody to look after his son Irshad does not appeal to us. In view of the above, we hold that the applicant has not made out the case for suspension of sentence and grant of bail. Hence, the application is dismissed. JUDGE JUDGE Ambulkar