1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal APPA No. 156/2010 in Cri. Appeal No. 94/2010 Chandrashekhar Haridas Dhole Vs. State of Maharashtra Criminal APPANo.177/2010 in Criminal Appeal No. 107/2010 Aziz Khan Jamir Khan Vs. State of Mah. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. R.S. Kurekar, Adv. for the applicant (In Cr.APPA No.156/2010) Mr. M.B. Naidu, Adv. for the applicant ( In Cr. APPA No.177/2010) Mr. Fulzele, APP for the State. CORAM: A.P. LAVANDE & R.K.DESHPANDE, JJ. Order reserved on :03/05/2010 Order pronounced on 06.05.2010. Both these applications filed under Section 389 of the Code of Criminal Procedure are being disposed of common order since they arise out of the judgment and order dated 29.1.2010 passed by Additional Sessions Judge-2, Nagpur in Sessions Trial No.440/2005. The applicant in Criminal Application No. 156/2010 was accused no.2 and applicant in Criminal Application No.177/2010 was accused no.3 in Sessions Trial No. 440/2005. Both of them along with accused no.1 Manohar Ganpatrao Moharle, were tried for the offences punishable under Sections 368 and 302 read with Section 34 of the Indian Penal Code. According to the prosecution, all the three accused in furtherance of their common intention on 2 19.5.2005 wrongly confined Ashish Ikhankar knowing that he had been either kidnapped or abducted and thereby committed offence punishable under Section 368 read with Section 34 of the Indian Penal Code and all the three accused in furtherance of their common intention committed murder of Ashish. In the course of the trial, the prosecution examined several witnesses and produced documents in support of the charges framed against the accused. The defence of the accused was of total denial. According to the prosecution, the informant Suresh is the owner of Shubham Mangal Karalaya located at Dattawadi Square, Nagpur and deceased Ashish was managing affairs of the said Karalaya. Accused no.1 Manohar was also having Mangal Karyalaya adjacent to Shubham Mangal Karalyaya. Accused nos.2 and 3 are friends of accused no.1. Accused no.2 Chandrashekhar is the owner of Maruti Car bearing No. MH-31/G-6242. Initially, missing report was lodged by Vasantrao Ikhankar on 19.5.2005 at 10.45 hours and thereafter report was lodged by Suresh Ikhankar at Wadi Police Station on 19.5.2005 at about 3.30 p. m. In the course of the trial, the prosecution relied upon the following circumstances:- (I) death of Ashish was on account of drowning; (II) All the three accused were last seen with Ashish i. e. Ashish left with the three accused in Maruti Car at about 3.30 a. m. on 19.5.2005. (III) discovery of clothes of deceased at the instance of the 3 accused. (IV) enmity between accused no. 1 and deceased Ashish. Learned trial Judge, upon appreciation of the evidence, held that the offence under Section 302 read with Section 34 of the Indian Penal Code was proved against the three accused but the offence punishable under Section 368 read with Section 34 of the Indian Penal Code was not made out against the accused. Mr. Naidu, learned counsel for the applicant (in Cr. Application No. 156/2010) in support of the application made the following submissions:- i] there is no cogent evidence that death of Ashish was homicidal; ii] the evidence of last seen is doubtful inasmuch as in the missing report lodged by Vasantrao Ikhankar, the names of accused were not mentioned. iii] discovery of clothes at the instance of the accused is also doubtful in view of the evidence of Subhash (PW 18); iv] the prosecution has not proved the motive for the commission of the crime; and v] articles seized during investigation were not sealed. vi] The applicant was on bail pending the trial and as such he deserves to be released on bail pending disposal of the appeal as the appeal is likely to take substantial time. Mr. Kurekar, learned counsel for the applicant (in 4 Criminal Application No.177/2010) adopted the arguments of Mr. Naidu. Mr. Fulzele, learned APP appearing on behalf of the respondent submitted that the medical evidence clearly proves that Ashish died on account of drowning and he was only found with underwear and his clothes were discovered at the instance of the accused. He further submitted that the finding of earth on the cloth seized from Maruti Car tallied with the earth found on the spot which is a strong circumstance against the accused. Learned APP further submitted that the evidence of Gajanan (PW 3) and Narendra (PW 10) that they had seen deceased Ashish leaving with the accused at about 3.30 a. m. on 19.5.2005 inspires confidence and this is a strong circumstance against the accused. He further submitted that merely because the applicant were on bail, by itself, would not a ground to grant bail pending the appeal. Reliance has been placed upon the judgments of the Apex Court in State of Maharashtra Vs. Madhukar Wamanrao Smarth ( AIR 2008 SC 1793) and Kishori Lal Vs. Rupa and others (2004 SCC (Cri) 2021. Learned APP submitted that dead body of deceased Ashish discovered pursuant to the disclosure made by the accused in the dam which was situated some distance from Nagpur. He, therefore, submitted that all these circumstances prove the complicity of the applicants in the crime. We have considered rival submissions and perused the record. The record discloses there is prima facie evidence 5 against the applicants. The evidence of Gajanan (PW 3) and Narendra (PW 10) discloses that deceased Ashish left with all the three accused in Maruti Car at 3.00 a. m. on 19.5.2005. Record also discloses dead body of Ashish was discovered though not actually from the spot pointed out but at a different place which was on the bank of Vena dam. Moreover, discovery of clothes of deceased Ashish which have been duly identified also a strong circumstance against the accused and we have no reason to disbelieve the discovery and seizure of the clothes of deceased Ashish at this stage. The discrepancies in the evidence of Subhash Gundewade (PW 18) the Investigating Officer regarding discovery is of minor nature and would not vitiate the discoveries. Similarly, non sealing of the articles, more particularly, clothes of the accused would not have much bearing inasmuch as it is difficult to hold that the clothes worn by the deceased which were discovered at the instance of the accused and identified in the course of evidence were planted by the prosecution. Death of Ashish has been on account of drowning as deposed by Dr. Prashant (PW 19) who conducted post-mortem on dead body of Ashish. Considering the circumstances appearing against the applicants, we are of the considered opinion that there is sufficient evidence against the applicants. Merely because the prosecution has not been able to prove the motive, by itself, is not sufficient to hold that the applicants were not involved in the commission of the murder of Ashish. It is well settled that motive is relevant in a case based on circumstantial evidence but absence of motive is not necessarily fatal to the 6 prosecution. Insofar as the arguments advanced by learned counsel for the applicants that the applicants were on bail pending trial and therefore, they are entitled to be released on bail pending the appeal is concerned, we find no merit in the said submission. The Apex Court in the case of Madhukar Samarth and Kishori Lal (supra) has held that mere fact that the applicant was on bail during trial and did not misuse the liberty, by itself, is not a ground to release the accused on bail pending the appeal after he is convicted for a serious offence. The Appellate Court has to consider the gravity of the offence and the nature of the evidence appearing against the accused. In the present case, there is sufficient evidence against the applicants to connect them with the murder of Ashish. In view of the above, we do not find any merit in both the applications. Hence, both the applications are dismissed. JUDGE JUDGE Ambulkar.