1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1088 OF 2011 IN CRIMINAL APPEAL NO.631 OF 2005 WITH CRIMINAL APPEAL NO.631 OF 2005 Ramesh Damu Shinde Applicant versus The State of Maharashtra and another Respondents Mr.Niranjan Mogare i/by S.M.Gorwadkar for applicant. Mr.D.P.Adsule, APP for State. CORAM : A.M.KHANWILKAR AND P.D.KODE, JJ. DATE : 16th September 2011 PC : 1. Heard learned counsel for the applicant and the learned APP.. The prosecution case proceeds on the basis of five circumstances to indicate the involvement of the applicant in the commission of the offence. The applicant was the husband of the deceased Savita. Her dead body was removed from the well abutting the house of the applicant. The prosecution has relied on five circumstances. Firstly that during the intervening night of 13th September 2004 and 14th September 2004, the deceased was found in company of the applicant. The second circumstance is that when the dead body of the deceased was removed from the well, she was found to be wearing only blouse and nicker. She had hair line fracture and no water was found in her stomach which presupposes that head injury 2 suffered by the deceased was ante mortem. Thirdly, the probable cause of the death was shock to the head injury. Fourthly, false explanation was given by the father of the accused no.1 (applicant herein) that Savita had gone to fetch water in the morning of 14th September 2004 and did return back. Fifthly, the motive was ill- treatment and harassment to fulfill the illegal demand of Rs.50,000/- for purchasing the motorcycle. 2. Insofar as fifth circumstance is concerned, besides the charge of section 302, the applicant was also charged for the offence punishable under sections 304-B, 498-A r/w 34 of Indian Penal Code. The applicant has been acquitted of the said charges. Even the Trial Court has found that the prosecution has failed to prove the motive. Thus, the fifth circumstance pressed into service has not been established by the prosecution at all. 3. The other circumstance relied by the prosecution is that the deceased was last seen together on the previous evening at around 5.00 p.m. i.e. of 13th September 2004. Prima facie, we fail to understand as to how this circumstance can establish the complicity of the applicant. No evidence has been brought to our notice which would indicate that the deceased was last seen together along with the applicant at or around 7.00 a.m. in the morning of 14th September 2004. Even the medical evidence relied by the prosecution suggests that the head injury suffered by the deceased was caused six hours before the post mortem was conducted which is between 7 to 8 a.m.. In that sense even the circumstance of last seen together at around 5.00 a.m. of 13th September 2004 on the previous evening pressed into service by the prosecution will be of no avail. 3 4. The second circumstance relied by the prosecution is that of head injury found during the post mortem. The cause of the said injury has not been established by the prosecution beyond doubt as having occurred only on account of assault, that too by the applicant. The Doctor in his evidence has admitted that such injury could be caused on falling on iron guarder in the well as a result of which the person would instantaneously become unconscious and in that case the possibility of absence of water in stomach and/or lungs cannot be ruled out. The prosecution has not produced any evidence to suggest that any weapon was recovered from the place of incident or at the instance of the applicant. Suffice it to observe that possibility of death occurred due to accident cannot be completely ruled out. 5. The only other circumstance pressed into service by the prosecution is false explanation offered by the applicant. In the first place, the prosecution having failed to discharge the onus of bringing on record the material which would pin point the applicant alone for the offence, the weakness in the defence cannot be the basis to record the finding of guilt of the applicant. 6. In view of the above, we find that formidable case is made out by the applicant and as the appeal has been admitted and is pending since the year 2005, we are inclined to grant bail to the applicant but on following conditions : (a) The applicant shall furnish bail bond in the sum of Rs.25,000/- with one or two sureties in the like amount; (b) The applicant shall periodically report to the nearest Police Station where he would reside on first and third Monday of every 4 month between 10.00 a.m. to 12.00 noon; (c) The applicant shall not leave the jurisdiction of Local Police Station without prior intimation and also furnish his address where he intend to visit to the Local Police Station; (d) The applicant shall deposit his passport, if available, with the Local Police Station; 7. The Criminal Application is allowed in the above terms. (P.D.KODE, J.) (A.M.KHANWILKAR, J.)