1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPLICATION NO. 840 OF 2008 IN CRIMINAL APPEAL NO. 1289 OF 2007 RAJESHKUMAR KUNJBIHARI DWIVEDI .. APPLICANT Vs. THE STATE OF MAHARASHTRA .. RESPONDENT Mr. A.P. Mundargi, Senior Advocate with Mr. P.P. Runwal for the applicant Mrs. U. V. Kejariwal, APP for the State CORAM:SMT.RANJANA DESAI & DR. D.Y. CHANDRACHUD,JJ. DATE: 26th August, 2008. P.C. . The applicant was tried by the Sessions Court at Mumbai in Sessions Case No. 392 of 2003 for offences punishable under Sections 449, 397, 302 r/w 34 of the I.P.C.and under Section 37(1) read with Section 135 of the Bombay Police Act. According to the prosecution on 17/3/03 the applicant along with one other (the absconding accused) entered the house of Ramaben (the deceased) committed robbery by using deadly weapons and murdered Ramaben. By judgment and order dated 2 5/9/07 the applicant was convicted inter alia for the offence punishable under Section 302 of the I.P.C. and sentenced to suffer life imprisonment. The appeal filed by the applicant challenging the said judgment and order has been admitted by this court. This is his application for bail. 2. We have heard Mr. Mundargi, learned counsel for the applicant at some length. We have also heard Smt. Kejariwal, learned APP. 3. Mr. Mundargi submitted that there is no eye-witness to the incident in question. The evidence adduced by the prosecution is not sufficient to establish the applicant’s involvement in the offence of robbery and murder. He pointed out that the prosecution has relied on the evidence of PW 23, who was working as watchman. PW 23 has stated that he had seen the applicant entering the building where the deceased was staying at about 9 p.m. and leaving the said building after about 45 minutes. Mr. Mundargi submitted that even if the evidence of PW 23 is accepted in the absence of other cogent evidence it cannot be presumed that the applicant had committed the offence. 3 4. Mr. Mundargi further submitted that the prosecution has relied on evidence of PW 5 who is a delivery boy of S K Courier. PW 5 has stated that the applicant had accepted certain envelopes addressed to the deceased on behalf of the deceased by telling him that the deceased had gone out and he signed the delivery receipts. According to the prosecution the said envelopes were found lying near the deceased and they were bloodstained. Mr. Mundargi submitted that the handwriting expert could not opine that the signature found on the receipt issued by the courier was that of the applicant. Therefore, according to Mr. Mundargi this evidence does not help the prosecution. He further submitted that the prosecution has alleged discovery of the robbed articles and clothes allegedly worn by the applicant at the time of offence at the instance of the applicant. He submitted that this evidence does not inspire confidence. According to Mr. Mundargi, therefore, the applicant is entitled to bail. Smt. Kejariwal, learned APP strenuously opposed the application for bail. 5. Though the prosecution has not examined any eye-witness, in our prima facie opinion, the 4 circumstantial evidence on which the prosecution has placed reliance unerringly points to the guilt of the applicant. Evidence of the watchman PW 23 establishes that though the applicant’s duty was over he had entered the building where the deceased was residing at 9 p.m. and he was in the building for about 45 minutes. There was no reason for the applicant to enter the said building after his duty hours and remain there for such a long time. This conduct, in our prima facie opinion, is consistent with the prosecution case that he is involved in the offence of robbery and murder. Though the handwriting expert has not been able to positively state that the signature on the receipt issued by PW 5 was that of the applicant, PW 5 the delivery boy has stated that he handed over envelopes addressed to the deceased to the applicant because the applicant told him that the deceased had gone out. The applicant signed on the delivery receipts. PW 5 has identified the applicant in the court. The said envelopes were found near the dead body. This circumstance lends assurance to the prosecution story. Besides at the instance of the applicant robbed articles were recovered and they were identified by the relative of the deceased. At the instance of the applicant his blood stained 5 clothes were recovered and the Chemical Analyser’s report indicates that the blood group of the blood stains found on the applicant’s clothes tallied with the blood group of the deceased. Undoubtedly the blood group of the deceased and the accused is same. However, it is not the case of the applicant that he had received any injuries. Therefore, this circumstances, in our prima facie opinion, is of a clinching nature. 6. In view of the above, the applicant cannot be granted bail. Bail application is rejected. JUDGE JUDGE