1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3927/2009 Mangal Chagan Koli .. PETITIONER VS The State of Maharashtra .. RESPONDENT .... Shri M.N.Deshmukh Adv. for applicant. Shri V.D.Godbharle, APP for respondent. .... CORAM : P.V.HARDAS & R.K.DESHPANDE,JJ. DATE :15/12/2009 ORAL ORDER: 1] The applicant/appellant by this application seeks suspension of the substantive sentence of imprisonment awarded by the Ad-hoc Additional Sessions Judge-I, Amalner, by judgment dated 14/10/2009 in Sessions Case No.47/2007 convicting the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code. 2 2] The prosecution evidence against the applicant/accused comprises of the fact that Anita had died a homicidal death in the house of the applicant/accused in the night, while she was in the custody of applicant/accused. Apart from deceased Anita and the accused, no other occupants were present in the house. Even the accused in his statement under Section 313 of the Code of Criminal Procedure, has not stated that he was not present in the house during the night. This is observed by the trial Court at paragraph 55 of the judgment. On the next date, a report came to be lodged by the applicant/accused contending that his wife had committed suicide in a fit of anger, on the basis of which, an Accidental Death came to be registered and thereafter the offence came to be registered and a charge sheet came to be filed. The trial Court upon appreciation of the evidence acquitted the applicant and the other accused for offence punishable under Section 498-A of the Indian Penal Code, but convicted the applicant/accused for offence punishable under Section 302 of the Indian Penal Code. 3] Mr.Deshmukh, learned counsel for the applicant has urged before us that there is paucity of evidence to connect the accused with the commission of the offence. According to the learned counsel for the applicant, the prosecution has not examined any eye witness nor is there any strong circumstantial evidence, which would connect the accused with the commission of the offence. It is also urged before us 3 that the applicant/accused is the sole earning member of his family and the applicant/accused was on bail during trial. The learned Assistant Public Prosecutor has opposed the application particularly the relief of suspension of substantive sentence of imprisonment and the enlargement of the applicant on bail. 4] Undisputedly, the evidence disclosed that it was a case of homicidal death. The Trial Court has observed in para 55 of the judgment that the applicant/accused was alone in the house and in fact had not taken any defence that he was not present in the house. Deceased Anita had died homicidal death in the sense that according to medical evidence, she was strangulated. Under Section 106 of the Indian Evidence Act, it was for the applicant to explain as to how his wife had died an unnatural death. The applicant has taken defence that his wife had committed suicide and for that purpose, derives support of his A.D. report submitted by him. According to us, upon examination of the finding of the trial Court, we are unable to see any material which would establish that Anita had committed suicide. In any event, the trial Court upon appreciation of the evidence has convicted the accused on the grounds stated hereinabove. The submission advanced by the learned counsel for the applicant pertains to appreciation of evidence, which cannot be done at this stage. Similarly, merely because the applicant was on bail during trial, would not be a ground to axiomatically suspend the substantive sentence 4 and release the applicant on bail. Prima facie, we find that there is evidence to justify the conviction of the applicant/accused. We hasten to add at this stage that the observations are made for the sole purpose of deciding this application and should not be considered as any finding on merits. 5] In that light of the matter, therefore, the Application is rejected. However, hearing of the Appeal is expedited. [R.K.DESHPANDE] [P.V.HARDAS] JUDGE JUDGE umg/criapln3927-09