1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.540 OF 2009 IN CRIMINAL APPEAL NO.436 OF 2009 Mr. Arjun Zagru Gaund ..Applicant. -versus The State of Maharashtra .. Respondents Mr.Prakash Naik, Adv. for the applicant. Ms. P.H. Kantharia, APP for the state. Mr U.P. Warunjikar, advocate for the complainant. CORAM: Smt. RANJANA DESAI & R. G. KETKAR, JJ DATED: 3rd July, 2009. P.C. 1. Applicant is original accused No.5. He was tried with two others i.e. original accused Nos l & 4 for the 2 offences punishable u/s 302, 307 read with section 34 of the Indian Penal Code . Original accused Nos 2 and 3 were absconding and therefore, their trial was separated. 2. By judgment and order dated l6th April, 2009, the applicant was convicted u/s 302 and l20(b) of the IPC and was sentenced to life imprisonment. The appeal filed by applicant No.l is admitted. This is his application for bail. Learned counsel for the applicant contended that this is a fit case where the applicant should be released on bail because there is no credible evidence adduced by the prosecution. 3. Before we take up this application for bail, we must note that original accused No.l who is son of the present applicant and was convicted alongwith the applicant, is absconding. 4. PW1 Surendra is the complainant. According to PW1 Surendra, he and deceased Dharmadeo closed their fruit shop and came to Nalasopara Railway Station. They were proceeding to their home on foot and when they reached near Damodar Park building, they saw three men 3 standing on the road. They were armed with sticks. The said men started assaulting on the head of deceased Dharmadeo with sticks. PW-1, Surendra turned back and the said men dealt blow of stick on his head due to which he became unconscious. The deceased and PW-1 Surendra were shifted to Hospital. The deceased was shifted to Sion Hospital where he died on 4.l.2001. PW-1 Surendra’s complaint came to be recorded on 2.1.2001. In the complaint PW-1 did not name the assailants. His supplementary statement came to be recorded on 4.1.2001 in which he is alleged to have named original accused No.l Upendra as a person who was standing and instructing the other accused to attack him and the deceased. 5. So far as the present applicant is concerned, admittedly he was not in Bombay on the day of incident. It is the case of the prosecution as stated by PW-1 that son of deceased Dharmadeo i.e. PW-4 Ramchandra informed him about the quarrel which had taken place at Harpur, Uttar Pradesh, l0 days prior to the date of incident. Accused No.l Upendra was neighbour of deceased Dharmadeo at 4 Harpur . According to PW-1 Surendra, uncle of accused No.l- Upendra was constructing a latrine on the public way at Harpur. All the inhabitants including the deceased were opposing the construction and hence there was a quarrel between them & the deceased. On that count after that quarrel, accused No.l had assaulted the deceased. Accused No.l, threatened the deceased that he will settle the account with him at Mumbai. It is pertinent to note that in the cross examination, defence has brought on record several omissions . The cross examination discloses that in his police statement, PW-1, Surendra had not stated that P.W.4 Ramchandra, had informed him about the incident which had taken place at Harpur on telephone. P.W.l Surendra had not stated before police that the assault was made on account of construction of latrine at Harpur. He had not stated before police that the villagers and P.W.4 Ramchandra had objected to the construction of latrine. Therefore, the previous quarrel in Harpur in which the applicant has allegedly played a role is prima facie not substantiated by the evidence of PW.l Surendra. 5 6. P.W.4 Ramchandra’s evidence also, in our opinion, prima facie does not inspire confidence qua the applicant. In his examination in chief he has referred to the incident which had allegedly taken place in Harpur. He has stated that accused No.4 Parmanand tried to construct latrine by the side of the road. Panchayat opposed that construction. The applicant was supporting accused No.4 Parmanand. Accused Parmanand did not listen to the advice of panchas and dug a pit for latrine. On that count, one boy from the said village pelted a brick at the applicant in which the applicant sustained bleeding head injuries. Accused No.4 Parmanand and the applicant thought that the said brick was pelted by PW-4 Ramchandra. At that time the applicant and accused No.4 Parmanand threatened him and stated that they will settle the account with him at Mumbai and therefore, he phoned the applicant and PW-1 Surendra about the incident and asked them to take precaution. 7. In the cross examination, he has admitted that he had not stated before the police that village boy pelted a brick at the applicant and therefore, the applicant and 6 accused No.4 thought that the said brick might have been pelted by PW 4 Ramchandra. He has further admitted that he had not stated before the police that after the said incident, he had phoned the deceased and told him to take precaution. He has admitted that he had stated before police that accused No.4 and two other persons had assaulted the deceased and PW-1 Surendra as per instructions of the applicant and accused No.4. However, he could not explain why the police had not recorded this fact in his statement. Prima facie we feel that these omissions on the part of this witness make him a totally unreliable qua the applicant. This witness prima facie does not support the case of the prosecution, in respect of the alleged incident at Harpur, which could connect the present applicant with the offence of murder. 8. It is pertinent to note that learned Judge in the impugned judgment has given a finding that the evidence of PW-4 Ramchandra supports the case of the prosecution that there was a conspiracy. In this connection it is pertinent to note that Investigating Officer Nivrutti Murade, 7 has stated in his evidence that he could not collect any proof that there was conversation on telephone between accused No.4 Parmanand and the applicant, Upendra and other accused during the period from 16.12.2000 to 1.1.2001. He has further stated that he could not collect any proof about the telephonic communication between the accused and witnesses. In view of this, prima facie, it is difficult to say that the applicant conspired alongwith the other accused to kill the deceased. 9. We have noted that accused No.l is the son of the applicant and he is absconding after conviction. His conduct needs to be depricated. As and when he is arrested his conduct will be taken into account while considering his application for bail. His case stands on a different footing. He was in Mumbai when murder took place. The applicant was not in Mumbai. Because the accused No.l is absconding, we cannot deny bail to the applicant. Besides, the present applicant is 61 years old and he was on bail in the trial Court. His age has also prevailed upon us. In the circumstances, this is a fit case 8 to grant bail to the applicant. 10. Hence following order. ORDER. I) The applicant Arjun Zagru Gaund is ordered to be released on bail in the sum of Rs. 25,000/- with one or two sureties to make up the amount. While on bail, he shall attend Nalasopara Police Station, once in every l5 days. II) The application is disposed of. (Smt. RANJANA DESAI, J) (R.G. KETKAR, J)