1 appa13511 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 135 OF 2011 IN CRIMINAL APPEAL NO. 300 OF 2006 Vishwanath Madhukar Shelar ...Applicant V/s. The State of Maharashtra ...Respondent Dr. Yug Mohit Chaudhry for the Applicant Mr. H.J. Dedhia, A.P.P., for the State. CORAM: A.M. KHANWILKAR AND A.R. JOSHI, JJ. DATE: 11TH FEBRUARY, 2011 P.C.:- Heard the counsel for the applicant and the learned A.P.P. 2. With the assistance of the counsel appearing for the parties, we have gone through the evidence of P.Ws. 1, 2 and 3. Prima facie, we are in agreement with the submission canvassed before us that, going by the prosecution evidence as it is, the defence of the 2 appa13511 applicant is more probable. In that, when the applicant arrived from his work at around 10.00 p.m., he saw his wife in a compromising position with P.W. 1 on the bed. On witnessing this incident, immediately, quarrel took place between the applicant and his wife, and, on the spur of the moment, out of anger, the applicant picked up the kitchen knife and stabbed his wife. Further, even in the past, the applicant was suspecting illicit relation between P.W.1 and his wife, on account of which, out of desperation, the applicant had made an attempt to commit suicide and was treated in hospital for that purpose. 3. Insofar as evidence of P.W.1 is concerned, we are in agreement with the criticism thereto to the effect that the said witness, who was related to the wife of the accused, has virtually accepted the position that, while visiting the house of the accused, he went by another route to avoid being noticed by the applicant, whose bidi shop is on the way to his house. Besides, he arrived at home of the accused at around 7.00 p.m., knowing fully well that the accused would not be present at the relevant time. He further conceded the position that the wife of accused had cooked mutton for him and both of them dined together at around 9 p.m. before arrival of the applicant. 3 appa13511 4. All these circumstances, if analysed in the context of the defence of the applicant, his defence seems to be more probable that the incident in question happened when the applicant entered his house and noticed that his wife along with P.W.1 was in a compromising position in the bed. The fact that her blouse buttons were open at the relevant time is reinforced from the inquest panchnama. The fact that the underpant of the wife was not found on her body is evidenced from the panchnama, under which clothes of the deceased were seized. 5. Taking over all view of the matter, therefore, even if the finding of guilt is to be recorded, it may be a case of offence under Section 304 of I.P.C., and not Section 302 of I.P.C. Besides, it is noticed that the applicant has already undergone six years and three months of actual sentence period so far; and, whenever the applicant was released on furlough leave or parole, he has reported back to jail within time and abided by the conditions specified therefor. As there are no other antecedents against the applicant, in the interest of justice, we are inclined to release the applicant on bail on the following conditions:- 4 appa13511 (a) The applicant shall be released on bail on furnishing bond in the sum of Rs.15,000/- with one or two sureties in the like amount. (b) The applicant shall report to the nearest local police station of his residence once in a month on the first Monday of every English Calendar month between 9.30 a.m. to 10.30 a.m. (c) The applicant shall furnish his latest residential address and/or change of residence, if any, from time to time, to the local police station and shall not travel outside Karveer, Kolhapur, without prior intimation of 48 hours in writing to the local police station and also disclose his travel programme and the contact place where he would visit. 6. Application disposed of on the above terms. A.R. JOSHI, J. A.M. KHANWILKAR, J.