1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 190 OF 2010 IN CRIMINAL APPEAL NO. 180 OF 2007 Mohammadali Badashaha Sayyed ..Applicant Vs. The State of Maharashtra ..Respondent .... Mr.Vikas Shivarkar Adv. for applicant Mr.V.B.Konde-Deshmukh APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE OF RESERVING ORDER : APRIL 19, 2010 DATE OF PRONOUCING ORDER : APRIL 30th , 2010 P.C. [ PER SMT.V.K.TAHILRAMANI,J. ]: 1 Heard the learned counsel for the applicant and the learned APP for the State. 2 2 The applicant has been convicted under Section 302 read with Section 34 and under Section 201 read with Section 34 of IPC by the learned Additional Sessions Judge, Baramati. The applicant is now seeking bail. 3 Briefly stated the prosecution case is that deceased Mohan was working in the police force since 1986. Mohan was married to Rukhminibai. The complainant Jagannath Dhumal who was also in police force, was the elder brother of Mohan. The complainant noticed that Mohan used to stay away from his house on many occasions. On enquiry, he came to know that Mohan had developed illicit relations with accused no.1 Kalpana. The complainant came to know that accused no. 1 Kalpana was a married lady. The complainant tried to advise Mohan to break off the illicit relations, however, Mohan did not heed the advice. In the meanwhile, Mohan purchased a flat at Dhankawadi at Pune and kept accused no.1 Kalpana in the said flat. He also purchased second flat at Katraj, Pune in the name of accused no.1 Kalpana. The flat at Katraj was in the name of accused no.1 and flat at Dhankawadi was in the name of Mohan. 3 Mohan was addicted to drinking of liquor. Due to his excessive addiction to liquor, he got jaundice. On account of his illness, Mohan was residing with the complainant for about one year. During that period, there used to be frequent quarrels between Mohan and accused no.1 Kalpana. Accused no.1 Kalpana had lodged complaint against Mohan, complainant and his family members, alleging that they committed house breaking of her house. The complaint was enquired into and Mohan came to be arrested and he was ultimately prosecuted. Due to this, Mohan was suspended from service. In the meanwhile, accused no.1 Kalpana let out flat on rent at Dhankawadi on rent without consent of Mohan. On account of this, there were frequent quarrels and accused no.1 Kalpana was insisting that Mohan should transfer the said flat in her name. On 20.12.2003 the complainant on enquiry with the wife of Mohan, came to know that Mohan had gone to his flat at Dhankwadi. On 22.3.2003 at about 10 a.m. the complainant received information that Mohan was found dead at Shetphal approach road. The complainant felt that death of Mohan was suspicious, hence, he made enquiry and he learnt that, accused no.1 was residing at Chandannagar along with present applicant. He further came to know that accused no. 1 Kalpana and the present applicant had hired a Sumo Jeep i.e. MH-12/AX-3218 and had taken Mohan to different places and thereafter, 4 Mohan was found dead. All these facts have been stated by PW 9 Radhabai Dhumal. It may be stated here that during the pendency of the trial, the complainant also expired, hence, he could not be examined. 4 In addition to the evidence of Radhabai, there is an eye witness to the incident i.e. PW 1 Arun Gaikwad who was the driver of Sumo Jeep bearing No. MH-12/AX-3218. Arun has stated that the present applicant hired his jeep on 21.10.2003. Accused no.1 Kalpana and accused Mohammadali i.e. the present applicant, sat in his jeep. The present applicant informed him that the vehicle of this witness was hired by finance company and sometimes there are incidents of scuffle, however, he should not pay any heed to it. Thereupon, this witness refused to accompany the present applicant. However, the present applicant assured him that he would not be involved in any incident, hence, this witness agreed to accompany the present applicant. Thereafter, Kalpana told the present applicant to alight from the jeep and she came back to the jeep with deceased Mohan. At that time, Mohan had already consumed liquor. Thereafter, they proceeded to Kalubai temple. On the way, accused no.1 Kalpana signaled witness Arun to stop the jeep and asked him to take the present applicant as a passenger. Accordingly, applicant boarded the vehicle. In the course of 5 journey, present applicant offered Mohan Dhumal a cup of tea and Mohan drank the said cup of tea. After sometime, deceased Mohan asked him to slow down the vehicle as his house was nearby. In the meantime, the present applicant gave one punch of fist on the face of Mohan. He jumped on Mohan. This witness halted his jeep on the side of the road, then accused nos.2 and 3 i.e. the present applicant and another accused took Mohan out of the jeep and took him in the adjacent field. It is pertinent to note that thereafter, dead body of Mohan was found on 22.12.2003. 5 The learned counsel for the applicant submitted that the cause of death is not due to strangulation or any injuries caused by any of the accused persons but it is on account of poisoning. He submitted that there is no material to show that the accused persons at any point of time, gave poison to Mohan. In this context, it is pertinent to note that evidence of PW 1 Arun shows that the present applicant had given a cup of tea to Mohan and Mohan had consumed the said tea. In such circumstances, the poison could have been mixed in the tea by the present applicant. In any event, the evidence of PW 1 Arun shows that the present applicant had assaulted Mohan on 21.10.2003, soon thereafter, the applicant and another accused took Mohan to a nearby 6 field and after that dead body of Mohan was found. 6 Looking to the evidence on record, we find that the prima facie complicity of the present applicant in the death of Mohan has been made out by the prosecution. Hence, we do not find that this is a fit case to grant bail. Application for bail, is rejected. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]