1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.3089 OF 2009 IN CRIMINAL APPEAL NO.488 OF 2009 Jaising @ Zailsing s/o Sardarsing Tak ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ----- Shri V.N. Damle, Advocate with Shri R.P. Dhase, Advocate for the applicant Shri B.J. Sonawane, A.P.P. for respondent ----- CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 16th October, 2009. ORDER (PER DAVARE, J.): 1. The applicant/ accused No.1 has preferred the present application requesting to suspend the substantive sentence and to release him on bail during the pendnecy of the appeal which has been filed by him challenging the judgment and order rendered in Sessions Case No.119/2008 by learned Additional Sessions Judge, Beed on 29.6.2009, convicting the applicant/ accused No.1 for the offence punishable under Sections 302 and 201 of the Indian Penal Code and sentencing him to suffer imprisonment for life and fine and also to suffer imprisonment for three years and fine respectively. 2 2. According to the prosecution, the applicant/ accused No.1 was in employment of I.C.I.C.I. Bank and used to lift the vehicles of the debtors for recovery of the debts. It is also alleged that he used to supply weapons and a deal was struck between the applicant/ accused No.1 and the deceased Annasaheb Thombre that applicant would supply a country made revolver to the deceased for the amount of Rs.25,000/-, out of which deceased Annasaheb Thombre had paid Rs.17,000/- to the applicant. However, the applicant allegedly failed to supply the said country made revolver to the deceased and, therefore, deceased was nagging the applicant either to supply the revolver or to repay back the money accepted by him. Hence, it is alleged that to abet the said nuisance, the applicant/ accused No.1 murdered the victim Annasaheb Thombre by assaulting him on head and legs by tomi/ iron rod/ pahar on 26.6.2008 and dead body of deceased Annasaheb Thombre was recovered on 27.6.2008. 3. The investigation was carried out. Applicant/ accused No.1 and accused No.2 were arrested and they were charged and tried for the offences punishable under Sections 302, 394, 201 read with Section 34 of the Indian Penal Code under Sessions Case No.119/2008 by learned Additional Sessions 3 Judge, Beed and the applicant/ accused No.1 came to be convicted and sentenced as aforesaid whereas the accused No.2 was acquitted from the charges levelled against him by the judgment and order dated 29.6.2009. Being aggrieved and dissatisfied by the said judgment and order, the applicant/ accused No.1 has preferred the accompanying appeal and prayed for enlargement on bail by way of present application during the pendency of the said appeal. 4. The learned Counsel Shri Damle, appearing for the applicant submitted that the prosecution case is rested upon the circumstantial evidence and there is no direct evidence to connect the applicant with the alleged crime. It is also submitted that the prosecution has failed to prove and establish the motive behind the crime and since the prosecution case is based upon the circumstantial evidence, the proof and motive plays vital role, wherein the prosecution has failed. It is further submitted that the prosecution relied upon the witnesses of last seen together the applicant and othe deceased Annasaheb Thombre i.e. the witnesses P.W.1 5 Raju More, cattle grazer and P.W.16 Sudhir, Petrol Pump Attendant, but no identification parade was conducted and the identification of the applicant by P.W. 15 Raju More in the Court cannot be relied upon and pertinently P.W.16 Sudhir does not say that deceased was with accused No.1 i.e. 4 applicant herein. 5. As regards the alleged motive, it is submitted that P.W.18 Rajendra i.e. brother of deceased stated that he had informed about the deals struck between the applicant and deceased in respect of revolver, but failed to prove the said motive. It is also submitted that the witness P.W.10 Vikas is not reliable. 6. The learned counsel for the applicant also pointed out that dead body of deceased was de-composed and evidence of P.W.14 Dr. Balaji is not of any aid and assistance to the case of prosecution. It was also canvassed that P.W. 14 Dr. Balaji nowhere stated about the force applied while causing the head injury to the victim. 7. The learned counsel for the applicant also urged that the applicant came tobe convicted on the basis of statemnets made by him in memorandum panchanama under Section 27 of the Evidence Act which are inadmissible and hence prayed that he deserves to be enlarged on bail. 8. Shri Sonawane, learned A.P.P. vehemently opposed the present application and submitted that the evidence of last 5 seen together i.e. applicant and the deceased put forth by the prosecution through the witnesses i.e. P.W.15 Raju More, cattle grazer and P.W. 16 Sudhir, Petrol Pump Attendant is incriminating against the applicant and connects the applicant with the crime. Moreover, it is also canvassed that the aspect of recovery of motorcycle at the instance of the applicant is a strong circumstance against the applicant herein. Moreover, it is further submitted that the prosecution has established the motive behind the crime i.e. supply of revolver by the applicant to the deceased, whose evidence of P.W. 18 Rajendra i.e. brother of deceased and accordingly prosecution has established nexus between the applicant and the crime and linked the circumstantial evidence unerringly against the applicant and hence, present application deserves to be rejected. 9. We have perused the record and proceedings as well as oral, documentary and medical evidence adduced and produced by the prosecution on record. We have also considered the submissions advanced by learned counsel for the parties. 10. At the outset, the prosecution has examined inasmuch as 21 witnesses to substantial the charges levelled against the applicant/ accused No.1 and accused No.2. Although the prosecution case is rested upon the circumstantial evidence, 6 the prosecution has put forth the evidence of P.W. 18 i.e. Rajendra, brother of the deceased, who has stated about the deal struck between the applicant and the deceased that the applicant would supply country made pistol to the deceased and the amount of Rs.17,000/- was paid by deceased to the applicant and hence, apparently there is evidence in respect of proof of motive for the crime. 11. Moreover, we have also perused the evidence of P.W. 15 Raju More, a cattle grazer and P.W.16 Sudhir, Petrol Pump Attendant, who saw three persons on 26.6.2008 on a motorcycle bearing Registration No.MH-16-R-7477 on 26.6.2008 i.e. on the date of commission of offence and P.W.16 Sudhir i.e. Petrol Pump Attendant, who knew deceased Annasaheb Thombre since he was his relative and who saw him on 26.6.2008 and applicant also had been to the petrol pump for filling petrol on 26.6.2008 at about 1.00 to 2.00 p.m. on a two-wheeler i.e. motorcycle and prima facie the evidence of last seen together is against the applicant. 12. As regards the medical evidence, P.W.14 Dr. Balaji stated that he conducted post mortem on dead body of deceased Annasaheb Thombre on 28.6.2008 and found that the deceased had sustained contused lacerated wound over parietal area of 7 scalp i.e. central part transversely placed 7 ½ cm. x 2 cm. x bone deep and such injury may cause due to hard and blunt object like iron rod and probable cause of death is stated to be shock due to head injury in post mortem notes (Exh. 13). Pertinently the motorcycle in question and the pahar/ iron rod were discovered at the instance of the applicant under the memorandum panchanama under Section 27 of the Evidence Act. 13. After having the comprehensive view of the matter, and also considering the submissions advanced by learned counsel for the parties, we are of the considered view that there is prima facie case against the applicant herein and, therefore, we are not inclined to enlarge the applicant on bail. Hence, present application deserves to be rejected and same stands rejected accordingly. [SHRIHARI P. DAVARE, J.] [NARESH H. PATIL, J.] fmp/cri3089.09