1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.3331 OF 2009 IN CRIMINAL APPEAL NO.420 OF 2009 Pandit s/o Shamrao Kavle ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ----- Shri N.B. Suryawanshi, Advocate for the applicant (appointed) Shri K.B. Choudhari, A.P.P. for the respondent ----- CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 7th October, 2009. ORAL ORDER (PER DAVARE, J.): 1. Perused. Heard learned counsel for the parties. 2. By the present application, the applicant/ accused has requested to suspend the substantive sentence and also for enlargement on bail during the pendency of the appeal which has been filed challenging the judgment and order rendered by learned Additional Sessions Judge-2, at Jalna in Sessions Case No.38/2009 on 19.8.2009, wherein the applicant/ accused was convicted under 2 Section 302 of the Indian Penal Code and was sentenced to suffer imprisonment for life and also fine. 3. It is alleged that the deceased Shashikalabai and the accused were married with each other about 25 years back and they were blessed with two sons. It is also alleged that, the applicant suspected about the acts of deceased Shashikalabai that she used to mix up something in his meals, and hence, due to said suspicion, on 1.1.2009 the applicant/ accused committed murder of his wife by throwing a big stone on her head and absconded thereafter. The investigation was carried out, the applicant/ accused was arrested on 5.1.2009 and was charged and tried under the aforesaid Sessions Case No.38/2009 and came to be convicted and sentenced as mentioned hereinabove. 4. The learned counsel for the applicant submitted that the prosecution has examined inasmuch as 5 witnesses, but out of the said 5 witnesses, 3 witnesses have turned hostile. It is further submitted that the prosecution case is rested upon the circumstantial evidence and there is no evidence in respect of the alleged occurrence of incident and the prosecution has failed to link the said circumstances unerringly. It is also canvassed that the prosecution has not examined any independent witnesses. Hence, it is submitted that the observations made by learned trial Judge and conclusions drawn by him, convicting and sentencing the applicant/ accused 3 herein are erroneous. 5. Shri K.B. Choudhari, learned A.P.P. submitted that the abscondance of the applicant/ accused since the date of incident i.e. 1.1.2009 till the date of his arrest i.e. 5.1.2009 itself is a strong circumstance against the applicant/ accused herein. Learned A.P.P. also pointed out that the applicant has raised the defence that on the date of incident, the deceased Shashikalabai was working in kitchen and a monkey came on roof-top of the house and thereby stone fell on her body and thereby she sustained fatal injuries, is not digestible. Shri K.B. Choudhari, learned A.P.P. also submitted that the observations made and conclusions drawn by learned trial Judge in the impugned judgment and order are true and correct. 6. We have perused the record and proceedings as well as perused the oral, documentary and medical evidence and also considered the submissions advanced by learned counsel for the parties. The prosecution has produced the post mortem notes at Exh. 35, which disclose that the deceased sustained about 8 abrasions and 4 serious injuries on her head. The cause of death mentioned therein is due to haemorrhage due to injury to multiple vital organs, and therefore, it is apparent that victim met with homicidal death. 7. It is material to note that the applicant was absconding 4 since the date of incident i.e. 1.1.2009 till 5.1.2009 on which date he was arrested and the applicant/ accused has not given any explanation in respect of said abscondance in his statement under Section 313 of the Code of Criminal Procedure, which itself, apparently, amounts to incriminating circumstance against the applicant. 8. We also find that the deceased Shashikalabai was the wife of the applicant herein and both were residing together at the time of occurrence of the incident. However, the applicant has not given any explanation in respect of death of deceased Shashikalabai nor given any explanation where the applicant was at the relevant time. 9. In the circumstances, after considering the evidence on record and also after considering the submissions advanced by learned counsel for the parties anxiously, we are of the view that prima facie there is evidence against the applicant and hence, this is not a fit case to enlarge the applicant on bail and hence, present application stands rejected. 10. Record and proceedings be sent back to trial Court forthwith. 11. The Legal Services Authority, High Court, Aurangabad 5 to pay the fees of Shri N.B. Suryawanshi, learned counsel, as per rules, who was appointed for the applicant in present application. [ SHRIHARI P. DAVARE, J.] [ NARESH H. PATIL, J.] fmp/cri3331.09