8.appa805-10 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 805 OF 2010 IN CRIMINAL APPEAL NO. 520 OF 2010 Ashfaque Saeed Shaikh .. Applicant Vs The State of Maharashtra .. Respondent Ms Indu Varma, appointed Advocate for the Applicant Ms. P.H. Kantharia, APP CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATE : 27th JULY, 2010 ORAL ORDER [PER SMT. V.K. TAHILRAMANI,J]: 1. The applicant has been convicted under sections 302, 435 of the IPC and section 4 of the Explosive Substance Act. The applicant is now seeking bail. 2. It is the prosecution case that various accused persons had entered into a conspiracy to cause bomb blasts at important places at Mumbai city with intention to cause widespread loss of lives and damage to property. Accordingly, number of bombs came to be prepared. It is further the case of prosecution that one of the co-accused 1 8.appa805-10 gave one bag containing bomb to the present applicant and asked him to carry the same in his luggage to another place. The applicant was carrying the bomb in a bag, however, his leg got entangled in a water pipe due to which he fell on the ground and the bomb which was in the bag exploded causing serious injuries to him and four other persons. Four persons i.e Anwar Fatma, Gulam Noor Mohd. Mustafa, Mohamed Deriya and Ranjana Rajghar sustained injuries due to explosion of bomb. Out of these four persons Anwar Fatma and Gulam Noor Mohd. Mustafa died due to injuries sustained by them due to explosion of bomb carried by the applicant. 3. PW 1 Ahmedi Begam has stated that on 27.02.1998, she had seen two persons carrying two bags. She has identified the present applicant as the person who was carrying one blue colour bag. She has also stated that left leg of the applicant got entangled in a pipe due to which he fell down resulting in bomb blast. It is pertinent to note that the present applicant and PW1 Ahmedi Begam are both residing in the same locality and due to this, she knew him prior to the incident. 4. Learned advocate for the applicant submitted that the evidence of PW1 Ahmedi cannot be relied upon because her statement was recorded belatedly. However, we are of the 2 8.appa805-10 opinion that the evidence of Ahmedi cannot be discarded only on the ground that her statement came to be recorded belatedly. The daughter of this witness died on account of the bomb explosion, hence, she was not in a frame of mind to give her statement at the earliest. It is pertinent to note that the presence of the applicant at the time and place of bomb blast is not disputed. Injury to his leg on account of explosion of bomb is also not disputed. Immediately, after the incident as he was injured, he came to be admitted in the hospital. As his wife PW 3 Fatima came to know that her husband (applicant) was injured, she went to the hospital, she made enquiry with him whereupon the applicant informed her true facts. Thus, the evidence of PW 3 Fatima also connects the applicant to the crime. 5. Another circumstance which would connect the applicant with the incident is that when spot panchanama was going on, son of the applicant came to the spot and he identified the bag lying there i.e the bag in which the bomb was carried and which exploded, as being the bag belonging to his father. 6. The learned advocate for the applicant submitted that the extra judicial confession given by the applicant to his wife cannot be relied upon. She placed reliance on decision of Punjab and Haryana High Court in case of Hari Kishan and 3 8.appa805-10 Ano Vs State of Haryana, 1990 CRI.L.J. 385. However, the facts situation in the case of Hari Kishan and the facts situation in the present case is not similar and hence, this decision cannot be made applicable to the present case. 7. The applicant has given extra judicial confession to his wife. He had made it when his wife had come to the hospital to see him as she came to know that he had received injuries and was admitted in the hospital. In such case, it is very natural for the wife to make enquiries with her husband and for the husband in those circumstances, to state true facts to her. In this view of the matter, we see no reason to doubt about this extra judicial confession made by the applicant to his wife. 8. The learned advocate for the applicant submitted that provisions of section 308 of Cr.P.C. have not been complied with and hence, the trial would be vitiated. In our opinion, that is an aspect which can best be appreciated and considered at the time of final hearing of the appeal. On going through the evidence, we find that there is sufficient material to connect the applicant with the crime, hence, the application for bail is rejected. [SMT. V.K. TAHILRAMANI, J.] [SMT. RANJANA DESAI, J.] 4 8.appa805-10 5