1 appa1180.09 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1180 OF 2009 IN CRIMINAL APPEAL NO.20 OF 2009 1.Rajesh Vinod Gajariya 2.Vinod Shobhraj Gajariya. ....Applicants. Vs. State of Maharashtra. ....Respondent. Mr. Shirish Gupte, Sr. Advocate with Mr. Sudeep Pasbola with Rahul Arote, advocate for applicants. Mr. A.S.Gadkari, APP for State. CORAM:- A.M.KHANWILKAR AND P.D.KODE, JJ. DATED:- OCTOBER 12, 2010. P.C. 1. Heard Counsel for the Applicants and the learned APP. This is an application for bail filed by the original Accused Nos. 1 and 2. The trial Court has recorded finding of guilt against the Accused Nos. 1 and 2 on the basis of circumstantial evidence for offences under section 201, 203 and 302 r/w 34 and other offences under section 370 r/w 34, 374 r/w 34 of I.P.C. and Section 23 and 26 of Juvenile Justice(Care and Protection of Children) Act, 2000. 2 appa1180.09 2. The circumstances, pressed into service by the learned APP to persuade us that the opinion recorded by the trial Court is unexceptionable, are that, the death of Sonu was reported to P.W.1 – Police Official of Oshiwara Police Station at around 1.30 a.m. on 22nd June, 2006. On receipt of that information, he immediately visited the premises in which the accused persons were staying alongwith deceased Sonu, who was working as maid servant. The dead body of the girl was found lying on the floor. The cause of death as opined by the Doctor was due to asphyxia and smothering. The prosecution strongly relies on the circumstance that the body of the deceased was found in the house of the accused. Another circumstance, which according to the prosecution indicates complicity of the accused persons is that they created evidence to suggest that the case was one of suicide and not homicidal death or accidental death. In that, allegedly the accused persons removed the body, which was stated to be hanging and also replaced clothes which were originally worn by the deceased. The prosecution also strongly relies on the 15 ante-mortem injuries found on the person of the deceased, which falsifies the theory of suicide. In addition, reliance is placed on the circumstance that the bed-sheet, which was recovered at the instance of the Accused No.1 could not have been used for hanging as the hook recovered from the ceiling was only 6 milimeters in diameter. Besides, ligature marks were found on the person of the deceased, which were possible 3 appa1180.09 by thread and not by the bed sheet on which the deceased was supposed to be hanging. 3. We have waded through the evidence of P.W.1, P.W.9, P.W.12 as well as discussion of the trial Court from paragraphs-93 to 108, to which our attention was invited by the learned APP. In our opinion, however, prima facie, even if the circumstances pressed into service by the learned APP were to be accepted as it is, that would not be sufficient to indicate the factum that the Accused No.1 and Accused No.2 were responsible for causing death of the deceased. That evidence is lacking. No attempt has been made by the prosecution to investigate the plea of the Applicants that they were away from the house between 3 p.m. to 12.30 a.m., when they returned back and noticed the fact that the deceased was found hanging. No evidence is forthcoming to rule out the possibility of some intruder having entered the house in the absence of the Accused Nos. 1 and 2. Although the prosecution theory initially was that offence of sodomy was committed, that was later on given up. During the cross-examination, the Doctor in paragraph-13 has admitted that he has not mentioned about ligature mark in the main P.M. report, but referred to it only in Sr. No.12 at column 21 of Exh. 58 and that mistake he realised only when he was giving evidence. 4 appa1180.09 4. Taking overall view, it is not a case, in our opinion, prima facie, to hold that the chain to establish the fact that the applicants accused Nos. 1 and 2 who are before us were responsible for the cause of death of Sonu. The prosecution may have brought on record by way of evidence of P.W. 9 to indicate that the accused No.4 was short tempered and which may indicate that she must have committed the alleged offence. However, even if that evidence is accepted as it is, there is no evidence to take the view that the accused Nos. 1 and 2 were present at the relevant time. At best, they may end up in being convicted for some other offence, but not for the principal offence of murder under section 302 of I.P.C. 5. Taking over all view of the matter, therefore, we direct that the Accused Nos. 1 and 2/Applicants herein, be released on bail on following conditions. (i) The Applicants shall furnish bail bond in the sum of Rs. 15,000/-each with one or two sureties in like amount. (ii)The applicants shall report to the nearest local police station of their residence once in a month on the first Monday of every English Calender month between 10.30 a.m. to 12.30 p.m. 5 appa1180.09 (iii)The Applicants shall furnish their latest residential address to the local police station and shall not travel outside Mumbai without prior intimation of 48 hours in writing to the local police station and also disclose their travel programme and the contact place where they would visit. 6. Application is allowed on the above terms. (P.D.KODE, J.) (A.M.KHANWILKAR, J.)