1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRI. APPLICAITON (APPA) NO. 210 OF 2010 IN CRI. APPEAL NO. 379 OF 2006. (SHEELA SHANKAR GHODE & ANR....VS... STATE OF MAHARASHTRA THR. PSO OLD CITY AKOLA) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. Anil S. Mardikar, Advocate (Appointed) for Applicants. Mr. T.A. Mirza, A.P.P. for Respondent. CORAM : A.P.LAVANDE & P.D.KODE, JJ. DATE OF RESERVING ORDER : 05.07.2010 DATE OF PRONOUNCING ORDER : 12.07.2010 ORDER : Heard Mr. Anil Mardikar, learned counsel for the applicants and Mr. T.A. Mirza, learned A.P.P. for respondent. 2. The applicants, who have been convicted by Additional Sessions Judge, Akola in Sessions Trial No.94 of 2005 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.three thousand each in default to undergo rigorous imprisonment for three months, by judgment and order dated 20th March, 2006, seek suspension of substantive sentence and bail. 3. The applicants who are husband and wife have been convicted for committing murder of Mahendra Tulshiram Ohekar. The applicants and family of Mahendra are residing in the same ward at Akola. It is the case of the prosecution that applicant No.1 is woman of loose character and she developed illicit relationship 2 with deceased Mahendra that too in connivance with her husband (applicant No.2) and both of them started extracting money from Mahendra. It is further case of the prosecution that on 20.06.2005 at about 11.00 a.m. the applicants took Mahendra out of the house and both of them returned late in the evening but Mahendra did not return. On the next day one dead body was found on railway track ahead of Dabkiroad Railway Gate. The body was thereafter identified to be that of Mahendra. Initially, investigation proceeded on the basis of accidental death. It is further case of the prosecution that Kasabai (P.W.1) mother of Mahendra though had approached officer incharge of Police Station, Old City, Akola on 20.06.2005 no F.I.R. was lodged pursuant to the report given by her and it was only on 30.06.2005 that the first information report was registered against the applicants. Thereafter again on 04.07.2005 the Investigating Officer took another report from Kasabai (P.W.1) and started investigation. After completion of the investigation chargesheet was filed against both the applicants under Section 306 read with Section 34 of the Indian Penal Code on the ground that the applicants had abetted suicide by Mahendra. After three witnesses were examined additional charge under Section 302 read with Section 34 of the Indian Penal Code was framed against both the accused. In the trial the prosecution examined six witnesses and produced several documents to prove the case against the applicant. Defence of the applicants/ accused was of denial and further defence was that Mahendra had committed suicide because he was being harassed by his mother Kasabai. 4. The learned trial Judge, convicted both the accused holding that following circumstances were proved against the applicant : i) Death of Mahendra was homicidal. ii) Deceased Mehdndra had left along with applicant in the morning at about 11.00 a.m. on 20.06.2005 and he was also seen in the evening along with the applicants by P.W. 4 Asha Jamkar. iii) Extra-judicial confession made by the applicant No.1 to Kasabai (P.W.1) as 3 well as to her son Ashok (P.W.3), iv) The fact that deceased had illicit relationship with applicant No.1 and on this count were extracting money from deceased Mahendra. 5. Mr. Mardikar, learned counsel for the applicant in support of the application urged following grounds : i) There is no evidence that death of Mahendra was homicidal. ii) Last seen theory is improbable and as such difficult to be accepted. iii) Extra-judicial confession made to Kasabai (P.W.1) is difficult to be believed since the same does not find place in the report and extra-judicial confession alleged to be made to Ashok (P.W.3) is by way of omission vis-a- vis in Police Station. iv) There is no cogent evidence of illicit relationship between applicant No.1 and deceased and exploitation of Mahendra on that count by both the applicants. 6. Per contra, Mr. Mirza, learned A.P.P. for the respondents submitted that all the circumstances relied upon by the trial Judge have been duly proved and since the applicants have been convicted for murder of Mahendra they are not entitled for suspension of sentence and bail. 7. We have considered the rival submissions and perused the reocrd. In so far as homicidal death of Mahendra is concerned, Post Mortem report Exh.44 has been admitted by the accused and the same discloses that there were several injuries on the vital parts of Mahendra and it is difficult to believe that the same could have been caused by an accident or in the course of suicide. Therefore, this circumstance stands proved against the applicant. 4 8. In so far as second circumstance is concerned, no doubt evidence of Kasabai (P.W.1), her husband Tulshiram and their son Ashok (P.W.3) is consistent that on 20.06.2005 deceased Mahendra had left along with the applicants. In so far as evidence of Ashabai Jamkar (P.W.4) is concerned we find it difficult to rely upon her testimony that she had seen the applicants along with the deceased in the evening at about 6.30 p.m. near Bhirad Mangal Karyalaya. Firstly, her statement was recorded on 3rd July, 2007. She also stated about altercation between deceased Mahendra and the applicants and that applicant No.1 slapped Mahendra. Her evidence discloses that ordinarily she used to go in the morning for buying vegetables once in a day. In cross- examination she admitted that on 20.06.2005 i.e. on the date of incident she had gone to bring vegetables around 8.00 to 8.30 a.m. Therefore, it is difficult to believe that in the evening also she had gone to buy vegetables from Bazar situated near Bhirad Mangal Karyalaya. Therefore, the prosecution at the most has been able to establish that the deceased left along with the applicants in the morning at 11.00 a.m. and the dead body of Mahendra was found at about 9.00 p.m. near Dabki Road Railway Gate. Considering the time gap this circumstances, prima-facie does not help the prosecution. 9. In view of above, the prosecution has been, prima-facie, able to establish the circumstances No.1 and 4 mentioned above, against the applicants. Having regard to the nature of the evidence available against the applicants and having regard to the fact that the appeal is not likely to come up for final hearing for a considerable long time, we are of the opinion that the substantive sentences imposed on the applicants deserve to be suspended, pending hearing and disposal of the appeal. 10. Hence, the substantive sentences imposed on the applicants are hereby suspended and the applicants are ordered to be released on bail upon each of them executing bail bond in the sum of Rs.twenty thousand with one surety in the like amount to the satisfaction of the learned trial Judge, subject to following conditions : 5 i) The applicants shall report at Police Station, Old City, Akola on first day of every month between 10.00 a.m. to 11.00 a.m. ii) The applicants shall not leave the jurisdiction of this Court without obtaining prior permission. iii) The applicants shall not indulge themselves in criminal activities. iv) The applicants shall deposit the fine amounts, if not already deposited, in the trial Court before executing the bail bonds. v) The applicants shall personally remain present in this Court at the time of final hearing of the appeal. JUDGE JUDGE RR.