1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 150 OF 2010 IN CRIMINAL APPEAL NO. 1151 OF 2009 Mayur Mulji Parmar and Anr. ..Applicants Vs. The State of Maharashtra ..Respondent .... Mr. Kapil Dave i/b Mr.Girish Kulkarni Adv. for Applicants Ms. P.H.Kantharia, APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : 5th APRIL, 2010 P.C.: 1 The applicants are original accused 1 & 3 respectively. The applicants alongwith two others were charged for offences under Sections 120(B), 302 read with 34 of the IPC as well as under Section 201 of the IPC. Original accused 2 died, hence, proceedings against her abated. Original accused 5 was a juvenile and hence, was not tried alongwith the applicants. The applicants alongwith original accused 4 2 were tried in the Court of Sessions for Greater Mumbai in Sessions Case No. 275 of 2000 for the above mentioned offences. The case of the prosecution in short was that the applicants committed murder of Manjula the wife of the 1st applicant in pursuance of a conspiracy and with a view to destroying the evidence disfigured the dead body, put it in a gunny bag and dumped the gunny bag near the gate of B.P.T. quarters. By the impugned judgment and order all the accused were acquitted of offence under Section 120(B) of the IPC. The applicants have inter alia been convicted under Section 302 read with section 34 of the IPC and sentenced to life imprisonment. The applicants have also been convicted under Section 201 r.w. 34 of IPC and sentenced to suffer RI for three years each. Substantive sentences have been ordered to run concurrently. Original accused 3 has been acquitted of the offence under Section 302 and Section 201 read with section 34 of the IPC. Being aggrieved by the said judgment and order, the applicants have preferred Appeal No. 1151 of 2009 which is admitted. This is an application filed by the applicants for bail. 2 We have heard at some length learned counsel for the applicants. He submitted that the applicants were on bail throughout the trial. Learned counsel submitted that there is no cogent evidence on 3 record to establish that the applicants committed murder of deceased Manjula and tried to destroy the evidence. Learned counsel submitted that the deceased went to answer the call of nature in the morning of 24.10.1999. As she did not return, a missing complaint came to be lodged by the 1st applicant on the same day. This conduct militates against any inference that the applicants committed murder of Manjula. Counsel submitted that the alleged finding of blood stains in the kitchen has wrongly weighed with learned Sessions Judge in convicting the applicants. Counsel pointed out that PW 4 Mulji Solanki who is pancha to the scene of offence panchnama is related to deceased Manjula and as such, no reliance can be placed on the panchnama. Counsel submitted that in the circumstances, the applicants be released on bail. 3 It is not possible for us to release the applicants on bail. Dead body of the deceased was identified by her relatives. Deceased Manjula was the wife of the 1st applicant. Both the applicants and the deceased were staying together in the house situated at Kumbharwada, Rammandir Road, Dharavi, Mumbai. It is, therefore, for the applicants to explain as to how the mutilated dead body of the deceased was found in a gunny bag near B.P.T. chawl on 23.10.1999. It is true that there is no eye witness to the incident in question but if the applicants are unable 4 to explain satisfactorily as to how the body of wife of the 1st applicant was found in the gunny bag that would provide the missing link in the chain of circumstances which are alleged by the prosecution against the applicants. In our opinion, in this case, the applicants have not satisfactorily explained how body of Manjula was found in a mutilated form in a gunny bag on 23.10.1999. In our opinion, this is a prima facie clinching circumstance which links the applicants to the offence in question. Besides the defence of the applicants is that Manjula left for answering natures call on 24.10.99 at 5 a.m. and and as she did not return, missing complaint was filed by the 1st applicant on 24.10.99. If the dead body of Manjula was found on 23.10.99, then the defence story prima facie appears to be false. 4 The second clinching circumstance in this case, is that the panchnama of scene of offence Exh.21 indicates that there were several blood stains on the wall of kitchen, on the curtains, on the steel water tank and on the door of the bathroom. There were blood stains also on the wooden cup-board which was in the hall. In the bathroom some hair and piece of flesh was found. Chemical Analyser ’s report indicates that the blood was human blood. Finding of human blood stains in the hall and kitchen of the applicants ’ house, in our prima 5 facie opinion, is only consistent with one inference i.e. the deceased was murdered in the applicants ’ house and it is the applicants who committed her murder. 5 The third glaring circumstance is that at the instance of the 1st applicant on 29.10.1999 a basket with blood stained knives was recovered. It must be noted that it is the prosecution case that the dead body of the deceased was taken in a basket by the 2nd applicant and the mother in law of the deceased who is original accused 2. So far as the 2nd applicant is concerned, PW 9 Nanji Devalia who was working as Secretary of Prajapati Sahakari Utpadak Mandal has stated that on 23.10.1999 he had seen original accused no.2 going from her house alongwith the 2nd applicant and there was basket on the head of the original accused 2. 6 There is yet another clinching circumstance which needs to be noted. The applicants and original accused 2 were arrested on 27.10.99. They were referred for medical examination. PW 13 Dr.Nandapurkar examined them. According to him, the 1st applicant had linear abrasion over neck. It was found on left side. It had blackish scab of size 5 cm x 4 cm above sternal notch. There was also a linear 6 abrasion over right shoulder top vertically oblique 4 cm in length. The 2nd applicant had incised wound over index finger of the right hand. There was also teeth bite mark on the right hand middle finger. There were two teeth marks on index finger of right hand dorsal at the base of terminal phalanx. Original accused 3 had also suffered injuries. The postmortem notes indicate that there were multiple chop and cut injuries on the deceased. Prima facie we are of the opinion that the applicants suffered the above injuries when the deceased tried to resist the attack. The applicants have not satisfactorily explained the injuries. Killing of a person in this manner and attempting to destroy the evidence by carrying the mutilated body in a gunny bag and dumping it on the road, cannot be a job of one person. In our prima facie opinion, it is a joint effort. We are of the prima facie opinion that chain of circumstances unerringly points to the guilt of the applicants. Bail cannot be granted to them. 7 Application for bail, is rejected. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.] 7