1 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1255 OF 2009 Kailas Baliram Surwase .. Applicant Versus Ramchandra Ishwar Surwase & ors. .. Respondents AND CRIMINAL APPLICATION NO.350 OF 2010 IN CRIMINAL APPEAL NO.1303 OF 2004 Dhanaji Ramchandra Surwase ..Applicant Versus The State of Maharashtra ..Respondent Mr. Vinod Jadhav a/w Mr. Rajesh Jadhav for Applicants in Criminal Application No.1255 of 2009 Mr. A.A.Joshi for Respondent Nos.1 & 2 in Criminal Application No. 350 of 2010 Mr. Anand Patil APP for Respondent No.3 CORAM : B.H. MARLAPALLE & SMT. V. K. TAHILRAMANI, JJ. DATE : 11 th March, 2010 P.C.: 1. Heard. 2. Criminal Application No.1255 of 2009 has been filed by the Original Complainant praying for cancellation of the bail granted by 2 this Court on 10 th March 2008 to Accused No.2-Shri Dhanaji Ramchandra Suwase , who is Appellant No.2 in Criminal Appeal No. 1303 of 2004, on the ground that Accused No.2 had suppressed the material fact that the learned Ad-hoc Additional Sessions Judge had after enquiry recorded a finding about the Juvenality of the said Accused No.2 and held against him, as per the order dated 5 th July 2004. It has been further pointed out that the certificate, which was relied upon in support of the plea for bail and which indicated that Accused No.2 was born on 4 th August 1986, was not proved by Accused No.2 by leading evidence before the Additional Sessions Judge and the said certificate was relied upon to persuade this Court to release the said Accused No.2 on bail, on the ground that he was a juvenile on the date of the incident i.e. 11 th November 2002. 3. Criminal Application No.350 of 2010 has been filed by Accused No.2 praying for additional evidence to be recorded on the issue of his being juvenile, under Section 391 of Cr.P.C. It has been stated that the additional evidence should be recorded in respect of the following documents by examining the concerned witnesses.: (i) School leaving certificate issued by Late Sau Vatsala Desai Vidyalaya and Junior College, Javala, Taluka Sangola, District Solapur. 3 (ii) School leaving certificate issued by Head Master of Zilla Parishad Primary School, Ambika Vasti, Javala (iii) SSC Certificate issued by the Secondary and Higher Secondary Education Board, Pune on 10 th June 2002. (iv) The registers maintained by the respective schools. 4. We are satisfied that though Accused No.2 had examined Shri Pandurang Raut, Shri Ramrao Shinde and Shri Ainaoddin Mulla as his witnesses before the Trial Court, the additional evidence is required to be recorded. As we have noted, Accused No.2 had examined his witnesses to disprove the birth and death registration extract, which the prosecution relied upon to show that the Appellant-Accused No.2 was born on 14 th January 1984. 5. However, it is clear from the record that Appellant-Accused No. 2 failed to invite the attention of this Court to the finding recorded by the Trial Court that, he was born on 14 th January 1984 and on the face of this finding, it was not permissible for him to rely upon his school leaving certificate which indicated that he was born on 4 th August 1986, in support of his bail application. Hence, the case made out by the Complainant to cancel the bail granted to Accused No.2 by order dated 10 th March, 2008, is required to be accepted. Bail 4 granted to Respondent-Accused No.2 is hereby cancelled. Accused No.2 shall surrender to the concerned police station within one week, so as to undergo the sentence. 6. So far as Criminal Application No.350 of 2010 is concerned, we hereby direct the Learned Additional Sessions Judge at Pandharpur to record additional evidence in respect of the above mentioned 4 documents and the prosecution will be entitled to cross-examine the witnesses that may be produced by the Applicant. The recording of evidence shall be completed as expeditiously as possible and in any case, before 17 th April 2010. 7. Accused No.2 to appear before the Trial Court on 17 th March 2010 through his Advocate and submit the documents along with the list of witnesses that he relies upon as mentioned hereinabove. 8. Needless to mention, if the original complainant has any additional evidence, he will be at liberty to place the same before the trial Court through the Learned Additional Public Prosecutor. On completion of the recording of evidence, the same shall be submitted to the registry of this Court by the Learned Additional Sessions Judge, at the earliest. 7. Criminal Application No.350 of 2010 shall thereafter be heard along with the Appeal. 5 8. As the Supreme Court has requested this Court to decide Criminal Appeal No.1303 of 2004 expeditiously we directed that the Appeal be added in the final hearing board, commencing from 26 th April 2010. (SMT. V. K. TAHILRAMANI, J.) (B.H. MARLAPALLE, J.)