1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2963 OF 2009 IN CRIMINAL APPEAL NO. 400 OF 2009 Shaikh Hakimoddin s/o Shaikh Minoddin, age 38 years, occ. Brick-kiln, R/o Bada Darwaza, Khultabad, Taluka Khultabad, Dist. Aurangabad. ..Applicant VERSUS The State of Maharashtra ..Respondent ..... Smt. S.S.Jadhav, advocate for the applicant Shri S.D.Kaldate, APP for the respondent ..... WITH CRIMINAL APPLICATION NO. 2857 OF 2009 IN CRIMINAL APPEAL NO. 385 OF 2009 Sayyed Amaan s/o Sayed Imam, age 25 years, occ. driver, R/o Khirdi Road T-point, Rajiv Gandhi Nagar, Khultabad, Taluka Khultabad, Dist. Aurangabad. ..Applicant 2 VERSUS The State of Maharashtra ..Respondent ..... Shri N.S.Ghanekar, advocate for the applicant Shri S.D.Kaldate, APP for the respondent .... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE ORDER : 14.9.2009 DATE OF PRONOUNCING THE ORDER : 23.9.2009 O R D E R : (Per Shrihari P.Davare, J.) 1 Perused. 2 These two applications have been preferred by the applicants/accused nos. 1 and 2 requesting for suspension of substantive sentences and for enlargement on bail during the pendency of the appeals filed by the applicant/accused nos. 1 and 2 challenging the judgment and order rendered by the learned Adhoc Additional Sessions Judge, Aurangabad in Sessions Case No. 186 of 2007 on 16.7.2009, wherein the applicants/accused nos. 1 3 and 2 were convicted for the offences punishable under Section 302 r/w Section 34 and Section 307 r/w Section 34 of the Indian Penal Code and were sentenced to suffer imprisonment for life and fine and R.I. For 7 years and fine, respectively. 3 The factual matrix are that the complainant Rafiq and his father Shakur (deceased) are residents of Kagjipura, Taluka Khultabad and were engaged in the business of bricks. Rafiq had purchased 2000 bricks from Hakimoddin which were allegedly of not good quality and some of them were broken. Hence, Rafiq demanded refund of the amount. A quarrel took place between them on the same count and non-cognizable cases were filed against each other regarding the said incident with Begum pura police station on 10.5.2007, but the relatives of both sides resolved the said dispute. 4 According to the prosecution, on 11.5.2007 when Rafiq and his father Shakur (deceased) were proceeding on motor cycle towards Khultabad at about 9.30 a.m., they saw a Tata tempo coming from opposite direction. Applicant nos. 1 and 2 and Hakim,s father-in-law and 4 brother-in-law were in the said tempo. Rafiq saw that at Nandrabad the said tempo took ‘U’ turn and proceeded towards khultabad and suddenly said tempo gave forcible dash to the motor cycle in front of Anil Chemicals and thereby deceased Mohd. Shakur sustained injuries and he was taken to Khultabad and from there shifted to Ghati Hospital, where he was declared dead. Police personnel recorded the statement of Rafiq which was treated as first information report and crime was registered against applicant nos. 1 and 2 herein for the offences punishable under Sections 302 and 307 of the Indian Penal Code. The applicants were arrested and were chargesheeted and were tried for the charges under Section 302 r/w Section 34 and Section 307 r/w Section 34 of the Indian Penal Code and were convicted and sentenced as afore said. Being aggrieved and dissatisfied by the said order of conviction and sentence, the applicants/appellants have filed appeals assailing the same and have preferred applications for enlargement on bail during the pendency of the said appeals. 5 Mr. Ghanekar, learned counsel for applicant/accused no.1 submitted that according to the 5 prosecution, there are 3 eye witnesses to the occurrence of alleged incident i.e. PW2 Shakeel, PW3 Rafiq- complainant and PW4 Sk. Raju s/o Sk. Babu, but PW2 Shakeel is a chance witness, who has neither identified accused no. 1 in the examination-in-chief nor attributed any role to him during the occurrence of the incident. As regards PW3 Rafiq-Complainant, the learned counsel stated that Rafiq was alleged pillion rider, but curiously enough did not sustain any injuries and even not a single abrasion was there on his person. Even the prosecution has not produced his medical certificate and hence, it is submitted that in the absence of any injury on the person of Rafiq and any injury certificate regarding the story putforth by the prosecution is doubtful. 6 Moreover, as regards the injuries sustained by the victim Shakur, it is submitted that he sustained 2 minor simple abrasions on the lumber and back, but there is no evidence of dragging or forcible dash, as well as post mortem notes do not corroborate regarding the forcible dash. He further stated that PW5 Dr. Vinod Bhalerao also deposed in his deposition that victim Shakur sustained only 2 external injuries, as well as, post mortem notes Exh. 6 33 disclose that victim sustained 2 external injuries and spot panchanama was prepared at the belated stage. It is submitted that all the afore said facts cumulatively brings the prosecution story under the cloud of suspicion. As regards PW4 Sk. Raju, alleged eye witness, it is submitted by the learned counsel for the applicant/accused no.1 that he also is a chance witness and the trial Court has not relied upon his testimony. 7 Learned counsel for the applicant/accused no.1 further submitted that the M.L.C. reports at Exhs. 46 and 47 speak about the vehicular accident, but do not indicate about any dash to the motor cycle. It is also submitted that the report was also filed by the complainant-Rafiq after 11 hours, which appears to have been fabricated in respect of intentional dash and the delay in lodging the report creates doubt about the same. It is further submitted that although Rafiq-complainant and accused no.1 herein did not know each other, no identification parade was conducted. The identification of accused no.1 in the court comes under the suspicion. Hence, according to the learned counsel for the applicant/accused no.1, the applicant/accused no.1 has no role in the incident. There is 7 no legal incriminating evidence against the applicant/accused no.1. It is further submitted that there are material omissions in the testimonies of eye witnesses in respect of driving of the vehicle by the applicant/accused no.1, which go to the root of the matter and diminishes the credibility of the prosecution case. 8 Learned counsel for the applicant/accused no.1 also canvassed that the statement made in Criminal Application No. 2953 of 2007 for bail cannot be treated as substantive evidence and the applicant/accused no.1 was not bound by the said admissions, but still the learned trial Judge has observed that the admission in bail applications certainly shed away significance of infirmities, inconsistencies or lacunae in the prosecution case. The said application was withdrawn by the applicant/accused no.1 on 27.8.2007. 9 Besides, in the said context, learned counsel for the applicant/accused no.1 submitted that part of the statements made in the bail application i.e. the role of the applicant/accused no.1 of driving the tempo at the relevant time was accepted, but the other part i.e. the 8 accident was not accepted and such pick and choose approach caused prejudice to the applicant/accused no.1 and relied upon the observations made in para 18 of the judgment of the Supreme Court in the case reported at AIR 1966 RAJASTHAN 83 [Jaswant Singh vs The State]. 10 Learned counsel Smt. Jadhav for the applicant/accused no.2 submitted that alleged incident occurred on 11.5.2007, but prior to that on earlier day i.e. On 10.5.2007 quarrel took place between accused no.2 and complainant Rafiq, but same was settled and the said issue of controversy was subsided and, therefore, there is no motive to the alleged dash given to the motor cycle at the behest of the applicant/accused no.2 leading to the death of Shakur. It is also submitted that the injury sustained by deceased Shakur would establish that he has not died homicidal death and, therefore, the conviction and consequent sentence inflicted upon the applicant/accused no.2 resulted into miscarriage of justice. It is further submitted that at the most the appropriate sentence to be awarded to the applicant herein would be under Section 304-A of the Indian Penal Code only, in the event that his presence is proved at the time of occurrence 9 of the incident. 11 Learned counsel for the applicant/accused no.2 further submitted that accused no.1 was driving the tempo and brother-in-law of the applicant as well father-in-law along with 7-8 persons including the applicant herein were present in the said tempo, but the applicant was singled out and was made accused in the present case and was implicated in the present case falsely, and hence, it is submitted that the applicant be enlarged on bail during the pendency of the appeal. 12 We have gone through the R. and Ps. which were made available for our perusal. We have also perused the oral and documentary evidence as well as perused the medical evidence. At the out set, the prosecution has examined in as much as 10 witnesses to substantiate the charges levelled against the applicants/accused nos. 1 and 2 herein. Out of them, PW2 Shakeel, PW3 Rafiq- complainant and PW4 Sk. Raju are the eye witnesses and hence, apparently there is direct evidence in respect of the occurrence of the incident to establish the nexus between the applicants and the alleged crime. 10 13 It is material to note that the categorical statement was made PW3 Rafiq-complainant in his deposition that he noted that the tempo which was going to Aurangabad, was turned back and proceeded towards Khultabad side, it was in high speed dashed him and his father in front of Anil Chemical Company and thereby his father fell down due to said dash and sustained head injury and it started bleeding. PW2 Shakeel also supported the said version, and turning back of tempo from Aurangabad towards Khultasbad side and giving dash to the motor cycle whereon 2 persons i.e. deceased Shakur and PW3 Rafiq were sitting, amounts to a strong circumstance against the applicants herein. 14 As regards the medical evidence, a bare perusal of post mortem notes Exh.33 discloses that although there were 2 external injuries and abrasions on the body of deceased Shakur, it is pertinent to note that there were following internal injuries :- “ Contusion under scalp, brownish blade size – 10 x 8 cm. Over occipital region. Linear fracture over left occipital and lt 11 temporal region of skull Subdural hemorrhage size 6 x4 c.m. Over frontal lobe Subarachoid hemorrhage seen generalized Meninges intact Brain matter – congested. “ 15 In the said context, PW5 Dr. Vinod has categorically stated that cause of death of deceased Shakur was the injuries on the vital organs and they were sufficient to cause death in the ordinary course of nature. Accordingly, it is apparent that the said medical evidence is incriminating against the applicants herein. Moreover, sight cannot be lost of the important aspect that the applicants i.e. accused nos. 1 and 2 herein were not released on bail and they were in custody during the pendency of the trial. 16 Having the comprehensive view of the matter and after giving anxious consideration to the submissions made by the learned counsel for the parties, we are of the considered view that prima facie there is evidence against the applicants herein and hence, this is not a fit case to 12 enlarge the applicants/accused nos. 1 and 2 herein on bail. Therefore, present application deserves to be rejected and same stands rejected accordingly. 17 Learned counsel Shri Ghanekar at this stage states that the applicants are ready to prepare the paper book privately. The appellants are at liberty to prepare the paper book in accordance with rules and get it certified from the Registry of this Court. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) dbm/crap2963.09