1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (A.P.P.A.) 282/2010 IN CRIMINAL APPEAL NO. 193/2010 (Sambhu s/o Sonaram Mahato and two others ...VERSUS... State of Maharashtra through P.S.O. P.S.Brahmapuri, Distt. Chandrapur) Office Notes, Office Memoranda of Coram, appearances, Court’s orders of directions Court’s or Judge’s orders and Registrar’s orders R.M.Daga, Advocate for applicants. Mrs. K.S.Joshi, Addl. P.P. for respondent. CORAM: A.P.LAVANDE & R. K. DESHPANDE, JJ. DATE : 7 th MAY, 2010 1 This is an application under Section 389 of the Code of Criminal Procedure for suspending the order of sentence of imprisonment dated 31.3.2010 passed by the learned Additional Sessions Judge, Chandrapur, in Sessions Case No. 78/2009, and for further direction to release the applicants/accused on bail during pendency of the appeal. 2 2 The applicants, who are the accused nos. 2, 3 & 5, have preferred appeal challenging the judgment and order dated 31.3.2010 passed by the learned Additional Sessions Judge, Chandrapur, convicting them for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay fine of Rs.500/- each, in default to suffer R.I. for one month. 3 The prosecution story is that, the deceased Sudam Sakharkar was the husband of the original accused no.1 Surekha and was residing at Maldongri along with his wife. The present applicants/appellants who are accused nos. 2, 3 and 5 were camping at Gosikhurd, where the irrigation work was going on. The appellants/accused were visiting the house of the deceased intermittently and used to dine there. On 10.3.2009 the accused persons had been to the house of the deceased for dinner. On the next day morning, the dead body of deceased Sudam Sakharkar was found in the paddy 3 field of one Misar, adjacent to the Gaothan of Maldongri. One Diwakar Sakharkar, brother of the deceased Sudam, lodged report, raising suspicion against the appellants/ accused, for the offence punishable under Section 302 r/w Section 34 of the I.P.C. The offence was registered and the charge sheet was filed. 4 The learned Judge of the Sessions Court has held that the death of Sudam Sakharkar was homicidal and it is proved that on 10.3.2009, the accused nos. 1, 2, 3 and 5 in furtherance of their common intention committed murder of Sudam Sakharkar by intentionally and knowingly causing his death by throttling and have thereby committed an offence punishable under Section 302 r/w Section 34 of the I.P.C. The learned Judge of the Sessions Court basically relied upon the evidence of PW-3 Shewantabai Sakharkar, wife of Baban, the brother of the deceased, who was residing adjacent to the house of the deceased. It was held that the deceased was seen in the house at 11.30 p.m. sitting in the court-yard 4 and the applicants/accused were seen watching the television programme inside the house of the deceased at that time. Thus, the evidence of PW-3 Shewantabai, as a circumstance of last seen together, is believed by the Sessions Court. Although the daughters of the deceased, Shyamal Sakharkar PW-4 and Rubiya PW-6 were in the house of the deceased and were examined as witnesses, they have turned hostile. 5 We have gone through the record. PW-3 Shewantabai has stated in her evidence that on the night of 10.3.2009 at about 11 to 12 midnight, she woke up and saw that the deceased was sitting in the court-yard. She further stated that the television programme on the T.V. set in the house of the deceased was “on”, and the accused persons were sitting in the house of the deceased and watching the T.V. programme. She thereafter went inside the house and went to bed. 6 In order to judge the circumstance “last seen 5 together”, what is required to be seen is the time gap between the accused persons seen in the company of the deceased and the detection of crime. The prosecution has to lead evidence to show that there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of crime. The finding of the Sessions Court is that the first information regarding the death of deceased Sudam Sakharkar was lodged on 11.3.2009 at 1 p.m. (Exh.50), though this is also disputed and challenged in this appeal. There is no finding in respect of exact time of death and the place of death of the deceased. The accused nos. 2, 3 and 5 were found sitting in the house of the deceased between 11 to 12 in the midnight of 10.3.2009. The body of deceased was found in the field of one Misal at some distance. The evidence of Shyamal PW-4, the daughter of the deceased is that, the appellants/ accused had come to the house of the deceased and after taking “prasad”, they left the house. PW-6 Rubiya, the another daughter of the deceased, states that, it is not true to say that 6 accused nos. 2 to 5 had come to the house of the deceased for dinner on the occasion of “Holi Festival” in the evening time. 7. Even if the evidence of PW-4 Shyamal and PW-6 Rubiya is not believed, being hostile, still, prima facie, there is no evidence led by the prosecution to show that there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of crime, between 11 and 12 in the midnight of 10.3.2009 and 1 p.m. on 10.3.2009 i.e. between the death of deceased and detection of crime. 8. When Sessions Court has recorded the finding that deceased was found at home and there is no evidence to show that accused nos. 2, 3 and 5 were at the house of deceased after 12 o'clock in the midnight of 10.3.2009, the accused nos. 2, 3 and 5 cannot prima facie, be held guilty. In view of this, the finding of the Sessions Court that on the 7 night of incident, accused nos. 2, 3 and 5 along with Anil took dinner at the house of the deceased and witnessed the T.V. programme, in no way advance the case of the prosecution, without anything more to hold that the accused nos. 2, 3 and 5 were involved in the commission of crime. The learned Judge of the Sessions Court has prima facie ignored such aspect of the matter and without there being any material available on record to connect the applicants/accused with crime, convicted them for the offence punishable under Section 302 r/w Section 34 of the I.P.C. 9. The appellants have thus made out a prima facie case and hence, in our opinion, they are entitled to get the sentence suspended and to be released on bail, more particularly when they were on bail throughout the trial. Hence the following order. 10. Thus, the application is allowed. The sentence of life 8 imprisonment imposed by the learned Additional Sessions Judge, Chandrapur, upon the applicants/accused, by judgment and order dated 31.3.2010 in Sessions Case No. 78/2009 is suspended pending the decision of the appeal. The applicants viz. (1) Sambhu s/o Sonaram Mahato; (2) Vikaskumar s/o Mithu Mahato and (3) Renul Mohammed Hasan Ansari shall be released on bail forthwith on the following terms and conditions, pending decision of the appeal. (a) The applicants/accused shall furnish bail bonds in the sum of Rs. 10,000/- each with one or two sureties in the like amount. (b) The applicants/accused shall furnish their local and permanent addresses of residence to Police Station Officer, Police Station, Bramhapuri. (c ) If the applicants/accused decide to reside within the jurisdiction of Police Station other than the Police Station at Bramhapuri, then they shall also furnish their address of residence to the Police Station concerned within whose jurisdiction they propose to reside. (d) The applicants/accused shall not move from their place of residence without prior intimation to the concerned Police Station within whose jurisdiction they propose 9 to reside. (e) While leaving the area of concerned Police station at any time, the applicants/accused shall furnish their addresses to the concerned Police Station within whose jurisdiction they reside and shall intimate or report back to the concerned Police Station on their return. (f) The applicants/accused shall remain present in this Court at the time of final hearing of the appeal. Application thus stands disposed of. JUDGE JUDGE Rvjalit