1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 537/2008 In Criminal Appeal No. 415/2007. Krishnakumar Bawankar vs. State of Maharashtra ------------------------------------------------------------------------------------------------------------------ Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. ----------------------------------------------------------------------------------------------------------------- CORAM : A.P.LAVANDE & A.B.CHAUDHARI, JJ DATE : 15.04.2008 By this application, the applicant who has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/- and in default to suffer rigorous imprisonment for one month seeks suspension of substantive sentence and bail pending the appeal. 2. The applicant has been convicted for causing murder of deceased Pankaj Koche. The applicant along with Pankaj was living in a room of P.W.2 Shrikrishna Raut at Gayatri Nagar, Nagpur on rental basis. Both of them were the law students. It is the case of the prosecution that on the intervening night of 23.11.2005 and 24.11.2005 the applicant assaulted Pankaj with a stone and other weapons causing him several injuries resulting his death. The applicant came to Police Station at about 10.25 a.m. on 24.11.2005 and reported that Pankaj has been murdered and his body was lying in the room which was latched from outside. The station diary entry (Exh. 57) was made and investigation was taken up which ultimately resulted in filing of charge sheet. The learned Sessions Judge held the applicant guilty of the offence of 2` murder of Pankaj and convicted and sentenced him as above. The trial court held that the prosecution had proved the following circumstances. i) That murder was committed in night time in the room which was shared by the accused with the deceased. ii) Nobody could hear voice of quarrel or scream and it is the accused who first reported the murder to police. iii) Accused remained calm when murder had taken place in his room on that night and he himself approached police on the next day at about 10.25 a.m.. iv) There were blood stains on the cloths of the accused when he approached police. v) Murder weapons were lying in the room and the door was closed from outside by putting on latch by the accused before approaching police. 3. Mr. Gandhi, learned counsel for the applicant submitted that the prosecution has not proved the first information report lodged in the present case and there is absolutely no evidence connecting the applicant with the commission of the murder of Pankaj. He further submitted that the prosecution has not established motive for commission of the murder of Pankaj by the applicant. According to Mr. Gandhi the relations between the applicant and Pankaj were cordial and there was absolutely no reason for the applicant to commit murder of Pankaj. He further submitted that the applicant was on bail pending the trial and, therefore, this is a fit case in which the applicant deserves to be released on bail pending appeal. In support of his submission Mr. Gandhi 3` relied upon the Judgment of the Apex Court in Uttam Sadda vs. State of Punjab (1993 CRI. L.J , 2597). 4. Per contra, Mr. Doifode, learned A.P.P. appearing for the respondent submitted that the trial court has rightly held that the circumstances mentioned in paragraph no. 62 have been proved by the prosecution and the said circumstances unerringly prove the guilt of the applicant beyond reasonable doubt. He further submitted that although the prosecution has not proved motive for the commission of murder the same by itself is not fatal to the prosecution case. He then urged that mere fact that the applicant was on bail pending trial by itself is not sufficient to grant bail to the applicant pending appeal. 5. Having heard the learned counsel for the applicant and learned A.P.P. and having perused the record we are of the considered opinion that this is not a fit case to grant suspension of sentence and bail to the applicant. In our opinion, the circumstances enumerated in paragraph no. 62 of the Judgment passed by the Sessions Judge have been proved beyond reasonable doubt. The said circumstances clearly prove that it is the applicant and applicant alone who is the author of the crime. It is pertinent to note that the investigation in the case was started pursuant to the information given by the applicant himself. In the absence of any plausible explanation coming from the applicant as to under what circumstance Pankaj met homicidal death and having regard to the cogent evidence led by the prosecution we are of the considered opinion that there is clinching evidence against the applicant. 4` The medical evidence tendered by Dr. Rajesh Bardale establishes that there were 26 external injuries including incised wounds and there were six corresponding internal injuries. There is no dispute that the death of Pankaj was homicidal. Therefore, there is a strong evidence against the applicant establishing his complicity in the commission of the brutal crime. Although the prosecution has not been able to prove motive looking to the cogent evidence brought on record by the prosecution we are of the considered opinion that the same is not fatal. In so far as the submission of the counsel for the applicant that the applicant was on bail pending the trial is concerned, we find no merit in the said submission. It is well settled that consideration for grant of bail pending the trial and past conviction are materially different and mere fact that the accused was on bail pending the trial by itself is not sufficient to grant him bail pending the appeal in a case of conviction under Section 302 of the Indian Penal Code. ( See Kishorilal vs. Rupa, AIR 2005 SC 1481). The Judgment of the Apex Court relied upon by Mr. Gandhi does not advance the case of the applicant since the facts in the said case are not identical with the facts in the present case. 6. For the reasons aforesaid, we find no merit in the present application. Hence, the same is rejected. Needless to mention that the observations made above are only for deciding the application for suspension of substantive sentence and bail. Judge Judge patle 5`