1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2849 OF 2009 IN CRIMINAL APPEAL NO.439 OF 2009 Machindra s/o Babusha Koli ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ----- Shri A.B. Tidke, Advocate holding for Shri S.S. Thombre, Advocate for the applicant Shri S.D. Kaldate, A.P.P. for respondent ----- CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 15th October, 2009. ORAL ORDER : 1. Heard learned counsel for the applicant and learned A.P.P. for the respondent. 2. The applicant was convicted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.2000/-, in default to suffer R.I. for one year by learned Adhoc Additional Sessions Judge-3, Latur in Sessions Case No.11/2009 by judgment and order dated 19.5.2009. The appeal filed by the applicant is admitted by this Court. This is an 2 application for bail. Record and proceeding was called for. We have perused the same. 3. Learned counsel for the applicant submits that, there is no eye witness in this case, the entire case is based on circumstantial evidence, the witnesses have not supported the prosecution case, the alleged recovery from the accused is of no use to the prosecution, there is no motive to commit murder of the deceased, the prosecution has created imaginary story to involve the applicant falsely in this case. As regards evidence of P.W.7 namely Haridas Koli, learned counsel for the applicant submitted that his evidence is not reliable. It is merely on the basis of surmises and conjectures the trial Court has convicted the applicant. 4. Learned A.P.P. Shri Kaldate submits that there are strong circumstances against the applicant. P.W.1 Madhukar Shinde, P.W.4 Pravin Koli and P.W.7 Haridas Koli are witnesses who have deposed regarding circumstances resulting into death of the deceased. Death is homicidal. The medical evidence is against the applicant. The applicant was last seen with the deceased. 5. We have perused the evidence of P.W.1 Madhukar Shinde, P.W.4 Pravin Koli and P.W.7 Haridas Koli and other 3 relevant evidence on record and the post mortem report. The doctor conducting post mortem opined that the probable cause of death was asphyxia due to strangulation. The deceased suffered lacerated wound on parietal region and there were ligature marks on neck over upper part of the neck and over front portion of neck, noticed by the doctor. Prima facie, we find that P.W.7 Haridas Koli deposed that the applicant and the deceased consumed liquor and quarrel ensued on a mobile phone. The quarrel was going one for some time and the witness further states that accused Prabhu and Machindra took Trimbak to the field of Goroba by beating him. Thereafter he left the spot. We find that in the cross-examination this witness is not shaken. The learned A.P.P. submits that the blood group was noticed on the clothes of the accused matches with the blood group of the deceased, which according to learned A.P.P., is strong circumstance and further submitted that, the prosecution has completed the chain of circumstances. During trial, the applicant was not on bail. 6. We do not find this to be a fit case to enlarge the applicant on bail. The application is rejected. Record and proceedings be sent back to the trial Court forthwith. [SHRIHARI P. DAVARE, J.] [NARESH H. PATIL, J.] fmp/cri2849.09