1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (APPA) NO. 150/2009 IN CRIMINAL APPEAL NO.468/2009 ( Vijay Baburao Diwse .vs. state of Maharashtra) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. R.M. Patwardhan, Advocate for Applicant. Mr. T.A. Mirza, APP for Respondent. .......... CORAM : A.P. LAVANDE & P.D. KODE, JJ. DATE OF RESERVING THE ORDER : FEBRUARY 3, 2010 DATE OF PRONOUNCING THE ORDER : FEBRUARY 10, 2010 Heard. The applicant/appellant convicted by the trial Court for having committed the offences punishable under Sections 302, 392 read with 397 and 201 of IPC and sentenced to suffer life imprisonment and to pay a fine of Rs.3000/- i/d to suffer R.I. for six months, to suffer R.I. for 7 years and to pay a fine of Rs.1000/- i/d to suffer RI for one month and to suffer R.I. for 2 years and to a pay fine of Rs.1000/- i/d to suffer R.I. for one month on respective counts has prayed for suspending sentence imposed upon him and releasing him on bail. 2 The facts leading to the said prosecution are as under : - On 25.3.2008 father of first informant PW1 Satyanarayan namely Bhimayya, had been to Maharashtra for purchasing goats and had carried Rs. 40,000/- with him and on 28.3.2008 he had purchased four goats from Gopal, Deshav and Bandu. Bhimayya at about 3 p.m. on mobile phone had informed about the same to his son PW1 and himself being near Talodhi village and he would be returning home on 2.4.2008. Since he had not returned, PW1 along with Durgayya had been to the village and contacted villagers Bandu, Keshav and Gopala and the said villagers had informed PW1 of his father having purchased goats and having paid them cash. PW1 and Durgayya in spite of search being unable to to trace out Bhimayya had filed missing report with Gondpipri Police Station along with photograph on 4.4.2008. On 12.4.2008 Gondpipri Police Station had informed PW1 that at about Chak Vitthalwada one skeleton of human being was found. PW1 had been to the said place at which the bones were found scattered and about which Police had prepared the panchanama and taken photograph. On 8.9.2008 PW1 while making inquiry with the villagers had gathered that on 28.3.2008 his father had purchased goat from appellant Vijay Diwse and so also had taken rest at his house and thereafter in the evening at about 5 p.m. both of them had been to Talodhi by foot. PW1 was not able to meet appellant at his house but one villager Gopala had informed him that 3 his father and appellant on 28.3.2008 at about 6.30 p.m. had gone by road having liquor shop of Sinnu Kandanuriwar. PW1 had also received information from one Linge that his father and appellant had consumed liquor and while returning from Talodhi, they were seen on Talodhi road near Balaji Rice Mill and they were proceeding towards Tarsa village by the said road. Then father of PW1 had asked appellant why he was taking him by kaccha road and appellant had disclosed that he was being taken to village Tarsa and on their way appellant was having his field. On 12.4.2008 in the bushes on the said road, human bones were found. PW1 again had been to the said place and after minutely seeing the said spot at one place at some distance found nail of his father and he had taken the same to his house, performed Pooja and immersed the same in the river on 10.9.2008. PW1 thereafter had lodged report with Gondpipri Police Station on 11.9.2008 that his father had carried Rs.40,000/- for purchase of goats and after purchasing four goats, he was having Rs.30,000/- with him. The appellant out of greed of money had offered liquor at Talodhi to his father and taken him to his field and after committing murder had thrown body of his father in the bushes of field and all articles of his father i.e. chappal, shawl, bag, feta were destroyed. On the said report, crime No. 70/2008 was registered and after investigation, the appellant was charge sheeted, tried and was convicted. The learned counsel for the applicant urged that prosecution has mainly relied upon three 4 circumstances for establishing guilt of the applicant. i.e. (a) the deceased being last seen alive in company of the appellant by PW6, (b)human blood being found upon the crowbar allegedly discovered and seized on 13.9.2008 in pursuance of the statement made by the applicant and (c) recovery of amount of Rs.10,000/- recovered from the applicant. It was urged that taking into consideration the allegations that deceased was murdered on 28.3.2008 , and crowbar was allegedly recovered on 13.9.2008 from at the behest of the appellant , it would be difficult to accept that any blood could have been found upon the same. Similarly prosecution evidence failed to establish that the amount of Rs.10,000/- recovered at the behest of the applicant were from the amount which deceased had carried with him for purchasing the goats. It was urged that the evidence relied by the prosecution for establishing deceased being seen alive lastly in the company of the appellant on 28.3.2008 at about 6 p.m. is neither cogent nor convincing and even accepting the same, the same does not lead to the sole conclusion that the appellant had committed the offences for which he is convicted and sentenced by the lower Court. The learned counsel for the applicant contended that thus considering the character of such prosecution evidence including conduct of PW1 of not immediately lodging report and the same being prima facie unable to establish the guilt of the appellant, his prayer for bail deserves to be considered. It was urged 5 that considering the nature of the evidence led by the prosecution, the appellant deserves to be released on bail, pending disposal of the appeal which is likely to take many more years. The prayer was opposed by the learned APP Mr. Mirza on the ground that the trial Court having reached to the conclusion of the guilt upon the assessment of evidence adduced by the prosecution, the applicant does not deserve to be released on bail. After considering the submissions advanced and perusing the record, we find prima facie substance in the submissions canvassed by the learned counsel for the applicant regarding the nature of evidence available against the appellant upon which he has been convicted and sentenced by the trial Court. Admittedly there exists no eye witness for the crime for which appellant has been sentenced. The evidence prima facie does not reveal of PW1 having immediately lodged the report and disclosing that he had identified the bones of the body found being that of his father on the basis of identification of nail located by him during his second visit to the spot. Taking into consideration the circumstances relied by the prosecution and the character of the evidence pertaining to the same i.e. the facet of the evidence of PW6 Vinod , the nature of article recovered being crow-bar in month of September, finding of which in a house being not an uncommon feature and there being lack of evidence to connect cash amount seized being from the cash which was with the deceased after purchasing of goats, we are of considered opinion that 6 all the said circumstances prima facie may not lead to the sole inference about guilt of the accused. Having regard to the same, the appellant has made out a case for grant of bail pending hearing and final disposal of the appeal. Hence substantive sentences of imprisonment imposed upon the appellant are hereby suspended pending hearing and disposal of the appeal and the appellant is directed to be released on his furnishing bond in sum of Rs.25,000/- (Rs. Twenty Five Thousand) with two solvent sureties in the like amount to the satisfaction of the Registrar (Judicial) of this Court and subject to the conditions of attending on 1st day of every month Gondpipri Police Station between 10 and 12 noon and attending this Court on the dates fixed for hearing of the appeal. Needless to mention that the appellant shall deposit the fine amount in the trial Court in case the same is not yet deposited, before executing the bail bonds. The appellant in addition to the aforesaid, shall not leave the jurisdiction of this Court without prior permission. Application stands disposed of accordingly. JUDGE JUDGE halwai