APPA. 740-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 740 OF 2011 IN CRIMINAL APPEAL No. 419 OF 2011 Navnath Ghamaji Gaware ... Applicant Vs. State of Maharashtra ... Respondent *** Mr. Shirish Gupte, Sr. Counsel i/b Jayant Bardeskar for the Applicant. Mr. K. V. Saste, APP for the Respondent No. 1. Mr. M. S. Mohite, for Respondent No. 2. *** CORAM : V. M. KANADE, & A. M. THIPSAY, JJ. DATE : OCTOBER 5, 2011 PC: 1. Heard the learned senior counsel appearing on behalf of the applicant, the learned counsel appearing for the original complainant/respondent No.2 and the learned APP for the respondent State. This is an application for bail filed by the applicant/original accused No.3, who was convicted by the trial court for the offences punishable under Section 302 read with Sec. 34 and also under S. 498-A read with S. 34 of the I. P. Code. 2. The prosecution case is that the applicant is brother-in- APPA. 740-11 - 2 - law of the deceased. According to the prosecution, deceased Sarika and brother of the applicant Jalindar got married on 25-4-2007 and on 6-11-2008 the deceased was brought to the hospital in an unconscious condition where she is declared dead. When relatives of the deceased saw the body, they noticed some injuries near the chin and behind the ear and therefore, the post-mortem was performed by the doctor and in the report it was stated that cause of death as ‘asphyxia’ due to strangulation. An offence was registered against the husband and the applicant and brother-in-law of the applicant. Trial court convicted all the three accused. 3. The learned senior counsel appearing for the applicant submitted that presence of the applicant in the house has not been established by the prosecution, and therefore, the applicant could not have been convicted for the offence punishable under S. 302 read with S. 34 of the I.P. Code. He also invited our attention to the cross- examination of PW 2 who in his cross-examination admitted that he was not aware whether the applicant was present in the house at the relevant point of time. 4. The learned counsel appearing for the original complainant, on the other hand, submitted that there was sufficient material on record to show the involvement of the applicant, so far as the offence punishable under S. 498-A of I.P.C. is concerned. It is further submitted that though a specific defence of alibi was taken by the applicant, no suggestion was given to any of the witnesses in the APPA. 740-11 - 3 - cross-examination, on this aspect; secondly, no evidence was adduced by the applicant to prove alibi, as claimed by them. 5. We have also heard the learned APP for the State, who has supported the submissions made by the learned counsel for the original complainant. 6. After having gone through the notes of evidence, in our view, it does appear that presence of the applicant is not established by the prosecution and therefore, so far as offence under S. 302 of I.P.C. is concerned, prima-facie there appears no material on record to connect the applicant in the commission of the said offence. The applicant, therefore, deserves to be released on bail. 7. The applicant is directed to be released on bail on execution of P.R. bond in the sum of Rs. 25,000/- with one or two sureties in the like amount. He shall report to the concerned police station once in two months. [A. M. THIPSAY, J.] [ V. M. KANADE, J.]