1 APPA.1580-2011 Acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1580 OF 2011 IN CRIMINAL APPEAL NO.1535 OF 2011 Abdulla Abdul Shakoor Ghansar ...Applicant. Vs. The State of Maharashtra ...Respondent. ------- Mr. Vijay Pradhan, Sr. Counsel i/b Mr. Parvez Ubharey,for the Applicant. Mr. J.P. Kharge, A.P.P. for the State. ---- CORAM: V.M. KANADE & M.L. TAHALIYANI, JJ. DATE : DECEMBER 20, 2011. P.C.:- 1. Heard learned counsel for the applicant and the learned A.P.P. appearing on behalf of the State. 2 The applicant is convicted for the offence punishable u/s 302 of the Indian Penal Code and is sentenced to suffer R.I. for life. 2 APPA.1580-2011 3 The prosecution case is that the applicant had assaulted deceased with knife, as a result of which, she succumbed to injuries and died. The prosecution case is that father of the applicant knew the deceased and was having love affair. However, this was not approved by the applicant, and therefore, he committed murder of the deceased Noorjahan. According to the prosecution the applicant came to the village where the deceased was residing and after her children went to school, he committed the said murder . 3 It is submitted on behalf of the applicant that the Trial Court erred in relying on the statements of PW Nos.1,2 and 5 recorded by the Magistrate and treated it as substantive piece of evidence though they have turned hostile. It is submitted that the prosecution is not in a position to establish the presence of the applicant in the village. It is further submitted that so far as recovery of the blood stained clothes are concerned, the Panch did not support the prosecution case, and neither the blood group of the applicant nor the deceased could be ascertained since results were inconclusive though the blood stain was found on the clothes of the deceased and the accused was of “B” group. He also submitted that no 3 APPA.1580-2011 incriminating circumstances were put to the accused/applicant when his statement u/s 313 of Cr. P.C. was recorded. 4 Learned A.P.P. for the State, however, submitted that the blood which was found on the clothes of the deceased and the clothes of the accused was of the same group and it clearly shows that the applicant was present and had committed offence. It is also submitted that three mobile phones were recovered at the instance of the applicant, and the record indicates that the applicant was present in the village. 5 After having heard both the sides, in our view, prima facie reliance was placed on the statements of the witnesses who turned hostile, and the Trial Court ought not have relied upon their statements which were recorded u/s 164 of Cr.P.C. as substantive piece of evidence. Further, the material which is on record is not conclusive to establish the presence of the applicant. 6 Under these circumstances, the applicant deserves to be released on bail since the appeal may not be heard immediately in near future. Hence, we pass the following order: 4 APPA.1580-2011 (i) Applicant is directed to be released on bail in the sum of Rs.15,000/- with one or two sureties in the like amount. (ii) The Applicant shall report to the Mhasala Police Station once in a month during the pendency of the appeal. 7 Hearing of the appeal is expedited. Liberty is granted to apply for a fixed date of hearing after private paper book is filed. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.)