1 Cri.Appln.No.1368/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1368/2011 Vijay @ Dnyandeo s/o Bhausaheb Fatke - APPLICANT VERSUS The State of Maharashtra Through Parner Police Station. - RESPONDENT ***** Mr.SS Jadhavar, Advocate for Applicant; Mr.VH Dighe, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 8th April, 2011. PER COURT : 1) Heard finally. 2) The applicant/accused, in custody from 29.6.2010, for an offence dated 28.6.2010 in Crime No.136/2010 registered at Parner police station District Ahmednagar, seeks bail. 3) Ashok Jadhav, the deceased, had two wives and a keep. The accused/applicant had allegedly illicit relations with Ashok's wives, knowledge thereof resulted in embroilment. Deceased allegedly threatened the accused/applicant – Vijay with dire consequences. 2 Cri.Appln.No.1368/2011 4) Prior to the events the incident, accused carried deceased Ashok with him under the pretext to purchase a car at Pune or also to ascertain fortune in business of brick kiln. They had meals in between, witnessed by Manager and hotel servant. Mobile calls were also made by the accused to Smt. Alka Shantaram Daundkar, attended by daughter of Alka. 5) The Counsel submits, that barring the evidence of last seen together, there is nothing to suggest any role of the accused/applicant in eliminating deceased – Ashok. Recovery of rope or Indica Car by itself will not connect him with the alleged crime. 6) The record illustrate, deceased – Ashok, after strangulation, was set ablaze to make his identity difficult. 7) Though theory of last seen together by itself is doubted by the learned Counsel, the fact remains that burden of proving the fact, especially within knowledge in terms of Sections 106 and also 105 of the Indian Evidence Act, primarily rests to the accused. Motive for eliminating Ashok was relations with his wife embroilment and threats exerted in past owing suspicion ringing in Ashok's mind. 3 Cri.Appln.No.1368/2011 8) There was no reason for the accused to pretend to take the deceased with him at Pune. However, events have taken place in between. Knowledge of subject matter of deceased was within the province of only the accused and he has to explain the same. At this stage, recovery of rope and the incriminating items/articles, including defacing or creating a situation to screen away the evidence also vibrantly speak against the accused than accepting his theory of innocence. The accused naturally bear an obligation to explain his presence with the deceased and how the deceased was done to death. The loophole in theory of last seen together will have to be considered at proper stage. 9) The circumstances primarily radiate the accused with commission of offence. The brutality with which Ashok was smashed tatters ordinary feelings. The application lacks merit, dismissed. The observations are prima facie in nature. ( K.U.CHANDIWAL ) JUDGE bdv/