1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1279 OF 2009 IN CRIMINAL APPEAL NO.1082 OF 2010 Dilbahadur Mansing Khadaka .. Applicant Vs. The State of Maharashtra .. Respondent Mr. Anas Shaikh for the applicant Mr. V. B. Konde-Deshmukh, APP for the State CORAM:-MRS. RANJANA DESAI & MRS. MRIDULA BHATKAR, JJ. DATED :- 20 th January, 2010 P.C. 1. The applicant who is accused-1, was tried alongwith two others by the Court of Sessions for Greater Bombay in Sessions Case No. 389 of 2007 for the offence punishable under Sections 302 read with Sections 34 of the Iindian Penal Code. The case of the prosecution is that the deceased was having illicit relations with the wife of accused-3 and therefore, the accused strangulated the deceased. The incident came to light on 6.2.2004 when PW-1 and PW-4 who are police constables, noticed a blue 2 colour Esteem car standing near Parsi Hotel at Adishankarcharia Road, Powai as they were petrolling on their moter-cycle. Windows of the car were closed and therefore PW-1 and PW-4 suspected that something was wrong. They proceeded to the car. They found that one person was sitting on the driver’s seat and one person was sitting on the rear seat of the car. According to the prosecution, they were accused 1 and accused 2. PW-1 and PW-4 took search of the car and found that behind the driver’s seat and infront of rear seat, one person was sleeping. They tried to wake-up that person but he did not respond. Suspecting that there was something wrong, accused 1 and 2 were taken to the police station by them. The person who was found sleeping in the car was taken to the Rajawadi Hospital where he was declared dead. PW-1lodged FIR at Powai Police Station and on the basis of that, investigation was started. After completion of the investigation the accused came to be charged and convicted as aforesaid. 2. We have heard learned counsel appearing for the applicant at some length. Learned counsel submitted that there is no credible evidence on record to establish the involvement of the applicant in the offence of murder. He submitted that there is no 3 discovery of rope or any articles from the applicant suggesting that he strangulated the deceased. Learned counsel pointed out that there are no blood stains in the car in which the body was found, which may lead to any inference that the accused strangulated the deceased in the said car. Learned counsel submitted that there is no direct evidence and the circumstantial evidence does not inspire confidence. He submited that the accused is 22 years of age and hence he may be released on bail after imposing stringent conditions. 3. We have also heard learned APP appearing for the State. He opposed the grant of bail. 4. In our prima facie opinion, the prosecution has proved its case against the applicant. The applicant, alongwith other accused was found in the Esteem car wherein the dead body was lying. The postmortem notes give cause of death as strangulation. Postmortem notes indicate that there were ligature marks on the neck due to strangulation. The postmortem notes indicate that there were no open bleeding wounds and therefore the applicant cannot take advantage of the fact that blood stains were not found in the car. The fact that the applicant was found in the car 4 where the dead body was lying is a clinching circumstance which prima facie brings home the guilt to the applicant. In the circumstances, bail cannot be granted to the applicant 5. The application is rejected. 6. The appeal is expedited. (MRS.MRIDULA BHATKAR, J.) ( MRS.RANJANA DESAI, J.) jpc/