1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR A.P.P.A.No. 100/2011 in Criminal Appeal No. 295/2010 Saifullakhan s/o Rashidkhan vs. The State of Maharashtra, through P.S.Nandgaon Peth, Tah. & Distt. Amravati. ------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. Mr. R.M.Daga, Advocate for the applicant. Mr. T.A.Mirza, APP for respondent. CORAM : S.A.BOBDE & MRS. V.K.TAHILRAMANI, JJ DATE OF RESERVING ORDER : 23.2.2011 DATE OF PRONOUNCEMENT : 8.3.2011 Heard the learned counsel for the applicant – original accused no.3 and the learned APP for the State. 2. The applicant has been convicted under sections 302, 394, 201 read with Section 34 and under section 397 of the Indian Penal Code. The applicant is now seeking bail. 3. The prosecution case, briefly stated, is that on 12.6.2006 at about 7.00 p.m. P.W.1 Arundhati along with her husband of Dr. Amol Vaidya (deceased) went to ring road Kathora for a walk. As it was getting dark, 2 they came back to their car. That time three persons on a motor cycle came there. The gestures and words uttered by the three men did not seem proper, hence Arundhati told Amol to sit in the car. Those persons asked Amol as to who is the girl to which Amol replied that she was his wife, one of them then said that though she was Amol's wife they would now make her their wife. One of them told the others that after a long time they had got good “mal”. Those persons were trying to approach Arundhati and Amol was protesting and pushing them. Meanwhile, Arundhati sat in the car and started calling on cellphone to her residence for help. However, one of the persons i.e. the applicant snatched the cellphone as well as gold bangle from her hand. Arundhati noticed that the other two persons and Amol were having scuffle at the backside of the car. After some time, she heard those persons saying that they should run away because some one was coming from backside. The three persons then sat on their motor cycle and drove away. Meanwhile, one motorcycle came from back side and went towards Kathora side. When Amol sat in the car, Arundhati saw that his shirt was 3 smeared with blood. Her husband told her that those three persons had snatched away his cellphone and wallet and assaulted him. She took Amol to the hospital. However, he was declared dead at about 9.30 p.m.. On examination it was found that Dr. Amol had four punctured wounds on his chest which were caused by a sharp and pointed weapon i.e. Article N sword stick. 4. Arundhati (P.W.1) has identified the present applicant as one of the three persons. She has stated that the applicant was the person who has said that though she was the wife of Amol, they would make her their wife. She has also said that it was the present applicant who snatched her cellphone and gold bangle. It is pertinent to note that the gold bangle and cellphone came to be recovered at the instance of the present applicant vide panchanama Exh. 96 which has been deposed to by panch witness P.W.5- Ganesh. 5. The learned counsel for the applicant submitted that no description of the accused was given by Arundhati in F.I.R. and hence identification by her in the 4 TIP cannot be relied upon. So far as this aspect is concerned, it is to be noted that P.W.1 Arundhati was a young girl who had got married to Dr. Amol on 28.6.2006. The incident in question had taken place within two months of her marriage. Obviously, when she saw her husband being attacked and he died soon thereafter she would be in a state of shock and hence it was not possible for her to give the description of the accused in detail. Thus, we see no reason to disbelive her evidence. 6. It is noticed that there was light at the scene of the incident and that Arundhati had ample time and opportunity to observe the features of the accused. Hence, it was possible for her to observe the accused persons. The features of the persons who committed such a ghastly act would be inprinted on her mind and she is not likely to forget them in a hurry. Moreover, P.W.1 Arundhati had no reason to falsely implicate any of the accused persons. She would not let the murderers of her husband go scotfree and falsely involve the applicant and co-accused. Hence, merely because she 5 has not stated in detail about the incident and described the features of the accused in her FIR, it cannot be a ground to disbelieve her. 7. The learned counsel for the applicant submitted that Arundhati had not actually witnessed the assault on her husband. He has stated that P.W.1 Arundhati has not specifically attributed any role of assault to the present applicant and in such case it cannot be said that the present applicant was in any way concerned with the death of her husband. No doubt Arundhati has not specifically stated that the applicant assaulted her husband, but from the evidence on record, it is clear that the applicant shared the common intention with the other accused to commit robbery and to commit murder of Dr. Amol. The very fact that Arundhati has stated that the present applicant was the person who said that though she was the wife of Amol, they would make her their wife and the fact that the present applicant snatched away her cellphone while she was trying to make a call to seek help shows that he shared the common intention with other persons to 6 commit robbery as well as murder of Amol. Moreover, it is pertinent to note that the conviction of the appellant is under section 302 read with section 34 IPC. Thus, we find no merit in this contention. 8. Thereafter, the learned counsel for the applicant contended that the recovery of gold bangle and cellphone belonging to Arundhati at the instance of the applicant cannot be relied upon because Arundhati had not mentioned in her FIR that her cell phone and gold bangle were snatched at the time of the incident. As far as this aspect is concerned, it is pertinent to note that Arundhati had two gold bangles. She was wearing only one at the time of the incident. The other gold bangle which was at home tallied with the gold bangle which was recovered at the instance of the applicant. Moreover, the receipt pertaining to these articles have also been produced on record. Thus, we find no reason to disbelieve the circumstance of recovery of gold bangle and cell phone at the instance of the applicant. 9. The fact that the applicant snatched away gold 7 bangle as well cell phone of Arundhati which came to be recovered at his instance shows that he has committed offence punishable under section 392 IPC. As far as the offence under section 302 of the IPC is concerned, even assuming that it was only the other two persons who assaulted Amol, it is obvious that the applicant did not make any effort to stop them. In fact, the act of stopping Arundhati from seeking help by the present applicant shows that he also shared common intention with other accused persons of causing death of Amol. We find there is sufficient evidence which connects the application with the crime with the offence under sections 302 as well as 392 read with Section 34 of the Indian Penal Code. Hence, we do not think this is a fit case to grant bail. The application is rejected. JUDGE JUDGE patle 8