1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No.404/2010 In Criminal Appeal No.291/2010 [Manohar Madan Jadhav .vrs. State of Maharashtra] ............................................................................................................................................. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ............................................................................................................................................. CORAM : A.P. LAVANDE & P.D. KODE, JJ. RESERVED ON : 17.8.2010 PRONOUNCED ON : 18.8.2010 1. Heard Mr. Firdos Mirza, learned counsel for the applicant/appellant and Mr. S.J. Jichkar, learned APP for the non-applicant/respondent. 2. The applicant has prayed for suspension of substantive sentence imposed upon him and for releasing him on bail during pendency of the appeal preferred. By the judgment and order recorded on 26.4.2010 in Sessions Case No.49/2008, learned Additional Sessions Judge, Pusad has convicted the applicant for offences under Sections 364 and 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 10 years with a fine of Rs.500/- in- default to suffer rigorous imprisonment for one month on the 1st count and imprisonment for life with a fine of Rs.500/- in- default to suffer rigorous imprisonment for one month on 2nd count. 3. It is the case of the prosecution that applicant real nephew of Santosh Jadhav PW1 developed illicit relation with Shewantabai PW4 wife of Santosh. After noticing the same PW1 scolded applicant and PW4 and PW4 abstained from 2 keeping such relations with appellant. The same irritated and annoyed applicant and he stopped talking with PW1. In order to cause serious injury to PW1 and PW4, once applicant inserted live electric wire with electric current in the bathroom of PW1. 4. On 25.7.2008, Khushal of age 7 years, son of PW1 and PW4 was playing in the house of Durgabai PW2, who is wife of real elder brother of Santosh. In the noon time, applicant went to the said house and induced Khushal that he will give him chocolate and biscuits and took him away from house of PW2. The applicant took Khushal towards the well in the land of Prabhu Kaniram Rathod. On the way he met Mohan Mansingh PW3 but did not speak with him. When PW3 asked him as to where they were going. According to prosecution applicant had pushed Khushal in the water of well in the land of Prabhu Rathod. Khushal unable to swim, drowned in the water and died. Initially the murg was registered upon the report of the village Police Patil lodged on the same day and after receipt of the opinion that death of Khushal was on account of asphyxia due to drowning, PW1 lodged FIR No.85/2008 for offence under Section 364 and 302 of the Indian Penal Code and as a result of investigation of the same, Pusad Police Station charge-sheeted the applicant and at trial he was convicted and sentenced. 5. The learned counsel for applicant urged that there exists absolutely no evidence establishing guilt of the applicant for the offences for which he is convicted and sentenced. He urged that there is no eyewitness to the crime which had occurred and the prosecution has rested upon the circumstantial evidence. He urged that main circumstance of deceased being seen alive lastly in the company of the 3 applicant is not established since Mohan PW3 did not support the prosecution and the prosecution was required to declare him hostile. He urged that the remaining circumstances relied by the prosecution regarding applicant being inimical with PW1 or Khushal having died homicidal death by themselves are not sufficient to fasten the guilt upon the applicant. He urged that without establishing any nexus of applicant with the crime occurred, the said circumstance cannot lead to the inference about guilt of the applicant. He urged thus conviction of the applicant being based upon fragile evidence incapable of driving to the inference of guilt of the applicant, the applicant has good chances in appeal. He urged that hence the applicant deserves to be released on bail pending hearing and disposal of appeal by suspending sentences imposed upon him. He further urged that the applicant was on bail during the course of trial and no misuse of the same being reported the applicant is liable to be released on bail pending the appeal. 6. The learned APP vehemently contended that the prosecution through the evidence of PW1 has duly established the applicant having illicit relations with PW4 and the same having come to an end after PW1 came to know about the same and scolded both of them. It is urged that the prosecution has also established that thereafter the applicant was having revengeful attitude towards PW1 and PW4. The prosecution has also established that the deceased met with homicidal death. The learned APP urged that the prosecution through the evidence of PW2 Durgabai has established that in the noon time the applicant had been to her house and had taken away Khushal. He urged that thus the said evidence established that deceased was lastly seen alive in the company 4 of applicant. He urged that deceased being not seen alive thereafter and his body being found in a well is also established by the prosecution. He urged that the trial court, after taking into consideration the said circumstances, has correctly drawn the inference about the guilt of the applicant and prima facie no fault can be found in the same. He urged that finding of guilt of the applicant being reached after assessment of evidence, now applicant cannot be said to be entitled for bail, as the aspect of himself being on bail during the trial is now rendered inconsequential . 7. After carefully perusing the record and considering rival submissions, we find it difficult to find any merit in the prayer for bail made by the applicant who has been found guilty for commission of offence after assessment of the evidence led by the prosecution at trial. We are of such a opinion as the perusal of the record duly supports the submissions of the learned APP of the prosecution having established the circumstance as urged by him i.e. (i) applicant having motive for commission of crime, (ii) deceased was seen last alive in the company of applicant when he had taken him away from the house of Durgabai PW2 by luring him of giving chocolate and biscuits, (iii) dead body of deceased was floating in the well water within few hours thereafter, (iv) post-mortem notes Exh.23 admitted in evidence reveals the death having occurred on account of asphyxia due to drowning and (v) applicant failed to give any explanation about the circumstance of himself having taken Khushal away from the house of PW2. The perusal of the record also reveals that the trial court has duly assessed the evidence of PW1, PW2, PW4, PM notes Exh.23 while coming to the conclusion of such circumstances being established by the prosecution. Having 5 regard to the same, we are unable to accept the submission that the said circumstances are incapable of leading to the inference of guilt of the applicant for the offences for which he is convicted and sentenced. 8. Similarly after taking into consideration the following observations made by the Apex Court in paragraph no.3 while considering the question of suspension of sentence pending the appeal in the case of Kishori Lal .vrs. Rupa and others, reported in 2004 (7) SCC page 638 : “The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and, therefore, grant bail. The High Court does not seem to have kept the correct principle in view”. and considering the case of the applicant in light of the same, we are unable to accept that merely because the applicant was on bail during the proceeding before the trial court, his request will deserve favourable consideration in spite of his guilt being established after trial for commission of offence of such a nature in respect of boy of a tender age. 9. In the premises aforesaid, we do not find any merit in the application made for suspension of the sentence imposed and for release of the applicant on bail. Hence, we dismiss the same. JUDGE JUDGE Gulande