1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2116 OF 2009 IN CRIMINAL APPEAL NO.299 OF 2009 Jabbar Latif Tadvi ... APPLICANT VERSUS State of Maharashtra ... RESPONDENT ----- Shri H.F. Pawar, Advocate for the Applicant Mrs. R.R. Mane, APP, for the respondent ----- CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 18th August, 2009. ORAL ORDER (Per : DAVARE, J.) 1. Perused. Heard learned respective counsel for the parties. 2. By the present application, the applicant prays that substantive sentence awarded by learned Additional Sessions Judge, Jalgaon in Sessions Case No.84/2007 on 30.5.2009 be suspended and he be enlarged on bail during the pendency of the appeal. 2 3. The applicant/ appellant was charged for the offence punishable under Section 302 of the Indian Penal Code for committing murder of Shankar Bhika Patil and was tried and convicted by learned Additional Sessions Judge, Jalgaon in Sessions Case No.84/2007 and was convicted for offence punishable under Section 302 of the Indian Penal Code and was sentenced to suffer imprisonment for life and also fine, by way of judgment and order dated 30.5.2009, which has been assailed in the accompanying appeal. 4. The learned counsel for the applicant submitted that the alleged incident occurred at about 10.00 p.m. on 19.5.2002 and there was darkness and due to poor visibility, the complainant Sumanbai and eye witnesses could not see the occurrence of incident clearly and, therefore, their testimonies cannot connect the applicant with the alleged crime. The learned counsel for the applicant also submitted that the prosecution has not examined the doctor who performed the post mortem and has not established nexus between external and internal injuries sustained by the deceased, which is the lacuna in the prosecution case. The learned counsel for the applicant further submitted that complainant Sumanbai cannot be eye witness to the incident since she was inside the house and her testimony cannot be of 3 any aid and assistance to the case of the prosecution. 5. The learned A.P.P. appearing for the State vehemently opposed the present application and submitted that the applicant committed murder of the victim namely Shankar Bhika Patil by means of knife, inflicting three blows of knife on the person of the victim in her presence as well as in presence of her two sons namely Gopal Patil and Nilesh Patil. Accordingly, it is submitted that, there are three eye witnesses to the occurrence of the incident, who cumulatively connect the applicant/ accused with the crime. The learned A.P.P. further submitted that the injury sustained by the deceased Shankar were on the vital part of the body and, therefore, the victim succumbed to the said injuries and cause of death given in the post mortem notes is ‘due to terminal cardio respiratory arrest due to haemorrhage due to multiple perforation to intestine’. It is also submitted that, to substantiate the charges levelled against the applicant, the prosecution has examined in all seven witnesses, out of which three are the eye witnesses and the weapon i.e. knife was discovered/ recovered at the instance of the applicant under the memorandum panchanama (Exhibit 28), which also connects the applicant/ accused with the crime. Hence, it is submitted by learned A.P.P. that there is incriminating evidence against the applicant, and hence, present application be rejected. 4 6. We have gone through the record and proceedings which was made available, and also perused the oral, documentary and medical evidence adduced and produced by the prosecution, and considered the submissions advanced by learned counsel for the parties. Having the comprehensive view of the matter, we are of the considered view that there are three eye witnesses to the occurrence of the incident and the eye witnesses’ account, medical evidence and discovery/ recovery of knife at the instance of the applicant, apparently constitutes prima facie case against the applicant. Moreover, sight cannot be lost of the material aspect that the applicant was absconding for substantial period of five years i.e. from the incident dated 19.5.2002 till 10.5.2007 as observed in paragraph No.18 of the judgment and also the fact cannot be ignored that he was not on bail during the pendency of the trial. 7. In the circumstances, apparently there is evidence against the applicant and hence, present application stands dismissed. [ SHRIHARI P. DAVARE, J.] [ NARESH H. PATIL, J.] fmp/cri2116.09 5