1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.3083 OF 2009 IN CRIMINAL APPEAL NO.435 OF 2009 Sakharam s/o Tarachand More ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ----- Shri A.G. Mukhedkar, Advocate for the applicant (appointed) Shri S.D. Kaldate, A.P.P. for the respondent/State ----- CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 24th September, 2009. ORAL ORDER (PER DAVARE, J.): 1. Perused. 2. By the present application, the applicant/ accused has prayed for suspension of substantive sentence and for enlargement on bail during 2 the pendency of the appeal, which has been preferred by the applicant/ accused against the judgment and order rendered by learned Additional Sessions Judge, Jalgaon in Sessions Case No.179/2007 on 5.9.2008, convicting the applicant/ accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him for the imprisonment of life and also fine. 3. It is alleged that the marriage of the applicant/ accused took place with the deceased Anita two months before the occurrence of incident i.e. on 19.7.2007. It is also alleged that on 19.7.2007 at about 1.00 a.m. victim Anita said to her husband that he is impotent and he is of no use and hence, the applicant/ accused became enraged and hence, the applicant/accused strangulated her by means of nylon string when she was in deep sleep. Accordingly it is alleged that the applicant/accused committed murder of his wife. The applicant/ accused was arrested, investigation was carried out. He was charged for the offence punishable under Section 302 of the Indian Penal Code and tried under Sessions Case No.179 2007 and came to be convicted and sentenced as aforesaid. Being aggrieved and dissatisfied by the aforesaid judgment and order, the applicant/ accused has preferred the accompanying appeal and prayed for enlargement on bail during the pendency of the said appeal. 4. Learned counsel for the applicant/ accused argued that there is no direct evidence and there is no eye witness and prosecution case is 3 based upon the circumstantial evidence. The learned counsel for the applicant/ accused also canvassed that the applicant does the centering work and he was not present in the house at the relevant time, and accordingly, the applicant/ accused has taken the defence of alibi. The learned counsel for the applicant further submitted that the deceased might have committed suicide and the applicant/ accused is not responsible for the death of deceased Anita and hence, submitted that the applicant/ accused be released on bail. 5. Shri Kaldate, learned A.P.P. vehemently opposed the present application and submitted that the death of victim Anita is a custodial death since deceased Anita was in the custody of applicant as the incident occurred at a1.00 a.m. on 19.7.2007. It is also submitted that the applicant/ accused has not given any explanation in respect of death of deceased Anita in his statement under Section 313 of the Code of Criminal Procedure. Moreover, it is further submitted by learned A.P.P. that the applicant/ accused has not examined any witness to substantiate his plea of alibi. It is also pointed out by learned A.P.P. that the applicant has given extra-judicial confession before neighbourer namely Tatya Kedar which reflects the impotency of the applicant herein. It is further submitted by learned A.P.P. that P.W.4 Dr. Shimpi examined the applicant/ accused and gave certificate which is at Exh. 26, which discloses that the applicant is unable to erect his penis and is unable to perform the intercourse. 4 6. As regards medical evidence, learned A.P.P. invited our attention to the post mortem notes, wherein cause of death is mentioned as cardio respiratory failure due to asphyxia due to strangulation which itself clarifies that the death of deceased Anita was homicidal death. P.W.4 Dr. Shimpi has supported the contents of the said post mortem notes and hence, the learned A.P.P. submits that there is no substance in the present application and same be rejected. 7. We have perused the record and proceedings as well as the ocular and medical evidence adduced and produced by the prosecution. Apparently the prosecution has examined inasmuch as four witnesses to substantiate the charges leveled against the applicant herein. Pertinently the incident occurred at wee hours, i.e. at 1.00 a.m. on 19.7.2007 and the death of deceased Anita, apparently is the custodial death and the applicant/ accused has not given any explanation to that effect in his statement under Section 313 of the Code of Criminal Procedure and the provisions of Section 106 of the Indian Evidence Act can very well be invoked. Moreover, the extra-judicial confession of the applicant/ accused before neighbourer namely Tatya Kedar is also vital. The medical evidence i.e. post mortem notes, cause of death mentioned therein and the certificate issued by P.W. 4 Dr. Shimpi (Exh. 26), coupled with the said extra-judicial confession prima facie amounts to incriminating evidence against the applicant herein. 5 8. Sight can not be lost of the aspect that the applicant has failed to establish the plea of alibi on the preponderance of probability and even no defence witness has been examined by applicant to that effect. 9. Hence, after considering the oral, documentary and medical evidence as well as submissions advanced by learned counsel for the parties anxiously, we are of the considered view that this is not a fit case to enlarge the applicant on bail and hence, present application deserves to be rejected and, therefore, same stands rejected accordingly. 10. The High Court Legal Services Authority to pay the fees of Shri A.G. Mukhedkar, learned counsel, who was appointed for the applicant in this case. [ SHRIHARI P. DAVARE, J.] [ NARESH H. PATIL, J.] fmp/cri3083.09