1 APPA 753.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPLICATION NO. 753 OF 2011 IN CRIMINAL APPEAL NO. 819 OF 2010 Mr. Ganesh Rajaram Malusare. ... Applicant. V/s. The State of Maharashtra & Ors. ... Respondents. Mr. A.P. Mundargi, Sr. Counsel with Mr. Vishal Kanade i/b. Ms. Ashvini A. Takalkar for the Applicant. Mr. P.S. Hingorani, APP for the State. CORAM : NARESH H. PATIL & K.U. CHANDIWAL, JJ. DATED : 1st AUGUST 2011. P.C. :- Heard. 2. This is an application for bail filed by the Applicant - convicted accused pending final hearing of the appeal. 3. The learned Counsel for the Applicant submitted that the circumstances brought on record by the prosecution are too weak to complete the chain and so as to un-hesitantly point out at the Applicant that he must be the culprit. The evidence against the Applicant is in the nature of last seen together and the recovery of clothes and motive. 2 APPA 753.11.sxw 4. We have perused the deposition of material witnesses including PW-4, PW-6, PW-7, PW-11 and PW-12. PW-4, wife of the deceased viz. Shakuntala states that the deceased had left alongwith the Applicant. It was submitted that the motive as put up by the prosecution is that the deceased had arranged marriage of Deepali, who is the sister of accused - Applicant. There was some misunderstanding and strained relationship due to the role played by the deceased in arranging the marriage of Deepali. The learned Counsel further submitted that except evidence of PW-4, which was to the effect that the Applicant and deceased were last seen together and Applicant and two acquitted original accused found going in Rickshaw by a constable, there are no material incriminating circumstances to involve the Applicant in commission of crime. The blood group of Accused - Applicant was 'A' and the blood group of deceased was found to be inconclusive. On the clothes of deceased blood group 'A' was noticed, whereas on the clothes of Applicant, blood group of 'A' was noticed. 5. The learned Counsel therefore submitted that on the same set of circumstances, the trial Court acquitted two accused and convicted Applicant. In the light of the fact that the final hearing of the appeal would take more than five years, the learned Counsel prayed that the Applicant be released on bail. 3 APPA 753.11.sxw 6. The learned APP submitted that the prosecution has established its case beyond reasonable doubt. There are strong circumstances brought on record involving the Applicant in commission of crime. In the statement made under Section 313 of Cr.P.C., the Applicant did not explain the circumstances occurring against him in the evidence of prosecution. The evidence of the constable who had seen the applicant alongwith the acquitted accused in Rickshaw is worth reliable and considering the prosecution case in its entirety, the Applicant does not deserve to be released on bail. 7. We have considered the submissions advanced by the learned Counsel. The case is based on circumstantial evidence. In such case, motive plays a vital role. The prosecution case is that the deceased was last seen with the accused and was also seen in Rickshaw alongwith two acquitted persons by the constable, who was on patrolling duty. The Applicant's blood group was not found on the clothes of the deceased neither the blood group of deceased was found on the clothes of the Applicant. The prosecution did not hold test identification parade. 8. Considering the facts of the case and the circumstances brought on record, we are of the opinion that the Applicant could be enlarged on bail pending hearing and final disposal of the Appeal by putting certain conditions. 4 APPA 753.11.sxw O R D E R (i) The order of sentence passed against the Applicant is suspended. (ii) The Applicant Ganesh Rajaram Malusare is released on bail in the sum of Rs.20,000/- with one surety in like amount. (iii) The Applicant shall attend the Vertak Nagar Police Station once in a month on 1st Monday between 10.00 a.m. to 12.00 noon. (iv) The Applicant shall not enter into jurisdiction of Vertak Nagar Police Station for a period of three months till 31st October 2011, except for attendance of the Police Station. (K.U. CHANDIWAL,J.) (NARESH H. PATIL,J.)