1 APPA 388/11 & 224/11 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 388 OF 2011 IN APPEAL NO.107 OF 2011 Avinash Shashikant Sawant : Applicant. versus The State of Maharashtra : Respondent. WITH CRIMINAL APPLICATION NO.224 OF 2011 IN CRIMINAL APPEAL NO.107 OF 2011 Avinash Shashikant Sawant : Applicant versus The State of Maharashtra and Anr. : Respondents. Mr. A P Mundergi with Mr. Prakash V Vare or the Applicant in Criminal Application No.388 of 2011. Mr.Prashant Aher for the Applicant-intervener in Criminal Application No. 224 of 2011. Ms. S V Gajre APP for the State. CORAM : NARESH H PATIL & MRS.MRIDULA R BHATKAR, JJ DATE : 22nd JUNE 2011 P.C. 1 Heard. 2 The learned counsel appearing for the intervener in Criminal Application No.224 of 2011 prays that the Applicant-intervener be impleaded as a party in the Criminal Bail Application No.388 of 2011 filed by the accused Avinash Sawant and the intervener be given audience. However, in the absence of any enabling provision in Criminal Procedure Code, no audience can be given 2 APPA 388/11 & 224/11 but we allow the intervener to assist the learned APP as it is permissible under Section 24(8) of the Criminal Procedure Code. Criminal Application No.224 of 2011 is disposed off. 3 Heard Mr.Mundergi, the learned counsel appearing for the Applicant-accused and Ms.Gajre, the learned APP appearing for the State. This application is filed by the accused Avinash Sashikant Sawant who is convicted for the offences punishable under Sections 302 and 452 r/w 34 of the Indian Penal Code as well as under Section 392 r/w Section 392 of the Indian Penal Code and is sentenced to suffer imprisonment for life and fine. 4 Incident of murder of one Malti Prabhakar Mahadik has taken place on 17th September 2009 at Santacruz Mumbai. She died due to multiple stabbed injuries caused by the accused and co-accused on the same day. Accused was arrested on 9th October 2009. 5 Mr.Mundergi, the learned counsel appearing for the applicant- accused submitted that the case is based on the circumstantial evidence. The conviction is based on recovery of blood stained clothes of the applicant-accused and the co-accused who was already dead before their arrest and also on recovery of gold ornaments of deceased Malti. The learned counsel for the accused submitted that recovery of clothes of the co-accused cannot be said as the recovery under Section 27 of the Evidence Act and in the panchanama of recovery of clothes of the co-accused as well as the clothes of the applicant- 3 APPA 388/11 & 224/11 accused, there is no mention of blood stains where the prosecution has tendered the evidence of finding of human blood mentioned in C A report, which is inconclusive. The learned counsel for the applicant-accused draws our attention to the statement of the applicant-accused recorded under Section 164 of the Criminal Procedure Code by the learned Metropolitan Magistrate wherein the applicant-accused has stated that co-accused Nilesh told him on telephone that Nilesh had committed murder of Malti and further told where Nilesh had kept the stolen ornaments. The applicant-accused was not aware about the murder. The learned counsel for the applicant-accused argued that the statement of evidence of Rupesh who is the brother of co-accused Nilesh also does not help the prosecution much as he has only stated in his evidence that the applicant-accused has informed him on 20th September 2009, about the telephone call from co- accused to him, about the ornaments of Malti and about the threats he had received. He further submitted that this evidence before the Sessions Court, unfolded by the prosecution if accepted it is not sufficient to hold applicant guilty under Section 302 of the Indian Penal Code and at the most it is only a case of receiving stolen property under Section 411 of the Indian Penal Code is made out, much less offences under Sections 302, 394 and 395 are proved. 6 Per contra, Ms.Gajre the learned APP appearing for the State submitted that the prosecution has relied on the evidence of recovery and seizure of clothes of the accused and co-accused and recovery panchanama of the gold ornaments. The learned APP, on query made by us in respect of non-mention of blood stains in the respective panchanamas of clothes, explained that in the CA 4 APPA 388/11 & 224/11 report it is specifically mentioned that the clothes, which were found with blood stained, appear to be washed. She therefore submitted that with the naked eyes such stains were not visible and therefore were not mentioned in the panchanama, however, after the chemical examination, human blood stains were found and accordingly reports are produced before the learned Sessions Judge. She further submitted that a complaint was given by Rupesh Rajaram Khake (PW14), who is the brother of deceased accused, to the police and on the basis of that complaint, as per the evidence of I.O.- Sanjay Rararam Patil (PW 13) the accused was traced. She pointed out that murder committed was brutal as multiple stabbed injuries were found on the person of deceased Malti. She submitted that the applicant-accused was absconding and after keeping watch, the police could nab him. Under such circumstances accused is not entitled to bail. 7 The case is based on circumstantial evidence. The evidence of P.W.1 complainant throws light on motive i.e. theft of gold ornaments. We have considered the evidence of PW.14-Rupesh the brother of co-accused Nilesh, PW. 14-IO Sanjay Patil. Learned counsel Mr.Mundergi has fairly admitted that statement under Section 164 of the accused is exculpatory. We give due weightage at this stage to evidence of P.W.14 Rupesh recovery panchanama of blood stained clothes showing human blood which was washed out, discovery panchanama of gold ornaments of deceased Malti in the house of the applicant- accused. We have considered Exhibit-72 and sequence of all the incidents, time and location of the murder and motive in which it was committed. Accused was 5 APPA 388/11 & 224/11 absconding after the incident and was not on bail through out the trial. On this background we do not think that this is a fit case to grant bail to the applicant- accused. Criminal Application No.388 of 2011 is accordingly rejected. 8 Both the Criminal Applications stand disposed of. (MRS.MRIDULA R BHATKAR J.) (NARESH H PATIL, J.)