.{1}. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1309 OF 2007 IN CRIMINAL APPEAL NO.1252 OF 2007 Subhash Gangadhar Jadhav. ..Applicant. Versus The State of Maharashtra. ..Respondent. .. Mr.Naveen Chomal, Adv. for the Applicant. Smt.V.R.Bhosale, APP, for the State. .. CORAM : S.B.MHASE AND CORAM : S.B.MHASE AND CORAM : S.B.MHASE AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATED : JANUARY 29, 2008. DATED : JANUARY 29, 2008. DATED : JANUARY 29, 2008. P.C.:- P.C.:- P.C.:- 1. Heard both sides. 2. This is an application for bail by a convict from Sessions Case No.129 of 2006 decided by the Adhoc Additional Sessions Judge-3, Nashik. The applicant was accused in the said Sessions Case and was convicted for an offence under Section 302 of IPC and sentenced to suffer life imprisonment with fine of Rs.500/- in default of payment of fine to suffer RI for a period of one month. .{2}. 3. The applicant-accused was/is an employee of Symbiosis Sampro Chemical Company. So also deceased Kanhu was employee of the said company. Even witness PW-6 Munna is also the employee of the said company. PW-6 Munna and the deceased Kanhu were residing within the premises of the said company. PW-5 Ranjanabai wife of the deceased Kanhu was/is residing with deceased Kanhu in the premises of the said company. It appears that deceased Kanhu was also supplying tea to the workers of the said company on night shifts. The incident has taken place on 2.5.2006. At that time PW-6 Munna and applicant-accused were working in the said company on night shift. Therefore, PW-5 namely Ranjanabai wife of the deceased Kanhu prepared tea and Kanhu had taken the said tea for PW-6 Munna and the accused Subhash Jadhav. The applicant-accused at that time refused to take tea and stated that he will take it subsequently and, therefore, the dispute started between the deceased and the accused-Subhash. It appears that the dispute aggravated and at that time applicant-Subhash has given blows on the head of the deceased Kanhu by angle of axe seriously, on which .{3}. the deceased suffered four head injuries and ultimately succumbed to death. The injuries as are available from the testimony of PW-7 Dr.Kishorprasad Ramprasad Shrivas, who performed autopsy appears to be as under :- 1. contused lacerated wound on occipital region. 5 cm X 1 cm. Bone deep. 2. contused lacerated wound on occipital parietal region, lateral to mid line on right side. 4 cm X 1 cm. Bone deep. 3. incised wound on left tampero parietal region. 6 cm X 1 cm. Bone deep. 4. contused abrasion on right arm etc. . On internal examination, the Doctor has found brain laceration over occipital and temporal parietal lobes to hemispheres varies from 3 cm X 1 cm X 3 cm to 5 cm X 1 cm X 1 cm. The cause of death was due to .{4}. head injury with intracranial and intracerebral haemorrhage with laceration over brain with haemorrhagic shock. 4. Therefore taking into consideration the testimony of two eye witnesses corresponding with Doctor’s evidence and the chemical analyser’s report which support the prosecution, the Sessions Judge convicted the accused. 5. The learned Counsel appearing for the applicant submitted that the prosecution has miserably failed to prove the offence. He submitted that according to the prosecution the incident has taken place at a factory premises however the dead body was found at a different place. The place of incident is shown to be room of PW-6 Munna which is not factory premises though in the factory premises. Therefore, he submitted that the incident has started from the factory and having found danger to the life, the applicant ran away from that place and the deceased chased the applicant and ultimately, according to the learned Counsel, it is the deceased who attacked the applicant and ultimately the deceased have fallen on .{5}. the cement blocks and on pipelines and suffered the injuries and died. Thereby he tried to impress upon us that the injuries were not caused by an axe but the injuries were accidental injuries as a result of fall of the deceased Kanhu and deceased succumbed to the death and therefore he submitted that if the evidence of the prosecution is considered and more specifically the evidence of eye witness is considered, it will be seen that the prosecution have a different story to tell and therefore the applicant is entitled for bail. He submitted that during the trial also the applicant was on bail and therefore during pendency of the appeal he is entitled to get bail. He submitted that bail granted earlier was not misused and therefore according to him, the bail is rule and jail is an exception and said principle, should be followed by this Court. 6. This application was seriously challenged by the learned APP for the State. The learned APP submitted that the fact that during the trial the accused-applicant was on bail though is one of the factors to be considered in favour of the accused in appeal for granting bail, that itself cannot be a .{6}. ground to grant bail because bail was earlier granted to the accused prior to the trial and at that time the guilt of the accused was not proved. However, the learned APP submitted that now the prosecution has proved the case against the accused and the Sessions Judge has convicted the applicant-accused and, therefore, grant of bail during the trial cannot be a factor in favour of the accused. On the contrary, now according to the learned APP, we will have to give a fresh look to the evidence and material which has been brought on record. The learned APP submitted that the Sessions Judge has considered the material on record and thereafter had convicted the applicant-accused for the offence under Section 302 of IPC. Therefore, when the offence has been proved, the accused person is not entitled for bail as a right, unless it is found that the reasonings given by the Sessions Judge are not proper one and there are chances of success in appeal in favour of the appellant. Therefore, the learned APP submitted that if we take into consideration the testimony of eye witness PW-5 Ranjanabai which supports the prosecution case. Not only that the learned APP submitted that the testimony of eye .{7}. witness PW-6 Munna which though not supporting fully to the prosecution case also shows that at the relevant time there was an altercation between the applicant and the deceased. Thus the learned APP submitted that the evidence of Munna also corroborates the testimony of eye witness PW-5 Ranjanabai and, therefore, the prosecution has established the case beyond doubt. Not only this, the learned APP also invited our attention to the fact that the rod which was alleged to have been used for giving blows to the deceased was having blood stains and the chemical analyser’s report supports to that effect and the blood stains on the wooden rod and the deceased match with each other. The learned APP submitted that the theory of a fall which has been attempted to be developed by the accused in the cross-examination of the Doctor, is miserably failed because the Doctor have stated that these injuries are not possible by single fall. There is no case of multiple fall. Apart from that, if it is a case of fall, then how a wooden rod is having blood stains of the deceased is not explained by the accused person. Therefore, the learned APP submitted that the evidence of Ranjanabai and that of the Doctor coupled .{8}. with the injuries of the deceased and the panchnama of the place of offence, with chemical analyser’s report, have established the case and, therefore, it is vehemently submitted that in appeal, the applicant is not entitled for bail. 7. The statements of the eye witnesses and the other material have been placed on record by the applicant. Both the Advocates have taken us through the testimony of both the eye witnesses namely PW-5 Ranjanabai and PW-6 Munna and so also the testimony of the Doctor. We were also taken through the panchnama of the scene of offence and other record. 8. But after going through the evidence of eye witnesses PW-5 Ranjanabai and PW-6 Munna, we find that the following facts are admitted i.e. on the day of the incident PW-6 Munna and Subhash ( the present applicant ) were on duty and were on night shift; the deceased was supplying tea to the workmen on the night shift and that at that time the deceased has also offered tea to PW-6 Munna and applicant-Subhash. It is also admitted that applicant-Subhash refused to take tea and, therefore, .{9}. the dispute started between applicant-Subhash and deceased Kanhu. As per PW-5 Ranjanabai, thereafter there was some scuffle between them and that blows by the wooden stick of an axe were given by applicant-Subhash on the head of the deceased and the deceased succumbed to death. PW-6 Munna has stated that the deceased has brought an axe from his house and after having found that the deceased was coming with an axe, the applicant ran from the said place and thereafter as per PW-6 Munna the deceased followed him and there was scuffle in between them. However, PW-6 Munna has not disclosed the fact as to how the deceased received the injuries and, therefore, PW-6 Munna was declared hostile. However, further the defence has brought on record presence of the accused, of the deceased and of PW-6 Munna. They have also brought on record that they have chased one another upto the room of Munna, where according to the prosecution case, the place of incident was and thereafter, the defence has tried to contend that the deceased has fallen down and thereafter the defence have not given suggestions as to how the deceased had received the injuries. The case of fall was suggested to both the eye witnesses, however, PW-5 .{10}. Ranjanabai has denied the theory of fall. So when the said suggestion was given to PW-6 Munna, he has stated that he had not seen whether Kanhu sustained injuries as a result of fall. Thus, he has avoided to answer and support the defence on that count. The case of fall has also been suggested to the Doctor. However, after going through the Doctor’s evidence, we find that the theory of fall is not possible. The Doctor has categorically stated taking into consideration the nature of injuries that if the person running falls on the cement steps, backside downwards such injuries may be possible. If any person slips from the plastic pipe and if there is scrap material lying there, some of these injuries are possible but not all. If person falls on the cement steps and also from the plastic pipes then in two such falls all these injuries are possible. Now, therefore, these injuries are not possible by a single fall. But we find that there is strength in the testimony of the Doctor. On examination the Doctor found that three injuries on the occipital region and occipital parietal region of the accused which are lacerated injuries cannot be possible by a single fall. There is no case made out for multiple .{11}. falls and apart from that there was no reason for a fall of the deceased. Under these circumstances what we find is that the testimony of the eye witness PW-5 Ranjanabai is more possible that the applicant had given blows by wooden side of an axe and thereby the deceased had died on the spot. The wooden rod of the axe is also having blood stains of the deceased. If the wooden rod is not used then how the wooden rod is having blood of deceased is not explained by the defence and it supports the case of the prosecution. At this stage, considering the material on record, taking into consideration the reasonings given by the Sessions Judge, we find that the prosecution has prima facie established a case beyond reasonable doubt for conviction under Section 302 of IPC. Except these, no other points were argued before this Court for seeking bail, and therefore, we find substance in the contentions of the learned APP that the fact that the accused was on bail during the trial is not a factor itself to grant bail when the prosecution has established the guilt of the accused and, therefore, the bail has to be considered at the appellate stage on the basis of the evidence and material which is on record which has been considered .{12}. by the Sessions Judge. We accept the said submission and relying upon the said submission reject the contentions raised by the learned Counsel for the applicant. 9. In the result, bail application is rejected. [SMT.V.K.TAHILRAMANI,J.] [S.B.MHASE,J.] [SMT.V.K.TAHILRAMANI,J.] [S.B.MHASE,J.] [SMT.V.K.TAHILRAMANI,J.] [S.B.MHASE,J.]