AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1173 OF 2009 IN CRIMINAL APPEAL NO.700 OF 2009 Sherbahadur Akram Khan ... Applicant Vs. The State of Maharashtra ... Respondent Mr. Prakash L. Shetty for the applicant. Ms. P.H. Kantharia, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATED : 5TH MAY, 2010. P.C.:- 1. The applicant is accused 1 in Sessions Case No.80 of 2007. By impugned judgment and order dated 4/5/2009, the applicant has been convicted, inter alia, for offence punishable under Section 302 of the IPC and sentenced to suffer life imprisonment. The appeal preferred by the applicant is admitted. This is his bail application. AJN 2 2. We have heard Mr. Shetty, learned counsel for the applicant. Counsel submitted that the applicant is 73 years of age. He submitted that the only evidence against the applicant is the testimony of PW-12 Lalit Dube, the eye-witness, who has stated that the applicant gave a call in loud voice to kill Navinchandra Dube and Hosalaprasad Upadhyay. He submitted that on 21/3/2004 between 6.00 p.m. and 7.00 p.m., after the funeral, the statement of PW-12 Lalit Dube came to be recorded. Therefore, it is risky to place reliance on the testimony of this witness. Counsel submitted that PW-12 Lalit Dube is an interested witness. He is a Deputy Secretary of Vishwa Hindu Parishad and, therefore, his evidence will have to be read with caution. Counsel submitted that the statement of PW-12 Lalit Dube was recorded after the news was flashed on the T.V. and it was published in the newspaper. Counsel submitted that only one case being C.R. No.449 of 2000 registered at Sakinaka Police Station under Sections 323, 324 of the IPC read with Section 34 of the IPC is pending against the applicant. All other cases have AJN 3 ended in acquittal. Counsel submitted that in the circumstances, the applicant may be released on bail. 3. It is not possible for us to release the applicant on bail. The applicant is involved in a double murder case. PW-12 Lalit Dube is an eye-witness. He has clearly stated that the applicant had given a call in a loud voice and asked the other accused to kill Navinchandra Dube and Hosalaprasad Upadhyay. Prima facie the applicant's active participation in the crime is indicated by his behaviour. Merely because the applicant is a Deputy Secretary of Vishwa Hindu Parishad, his eye-witness account cannot be discarded. Assuming he is an interested witness, it is not the law that the evidence of all interested witnesses should be discarded. It is submitted that statement of this witness was recorded on 21/3/2004 after the funeral was over and news was flashed on the TV and it was published in the newspaper. We are not impressed by this submission also. The incident had taken place on 20/3/2004 at about 7.45 p.m. and the AJN 4 statement of PW-12 Lalit Dube was recorded between 6.00 p.m. and 7.00 p.m. on 21/3/2004. Prima facie we do not feel that there is any inordinate delay in recording the statement which can have adverse effect on the prosecution case. It is too much to presume, at this stage, that PW-12 Lalit Dube involved the applicant in the incident because the news was flashed on the TV and published in the newspaper. Learned A.P.P. has drawn our attention to six cases which were registered against the applicant at Sakinaka Police Station. Undoubtedly, out of the six cases, in five cases, the applicant has been acquitted but one case is still pending. Therefore, it cannot be said that the applicant does not have any antecedents. This is one additional reason which persuades us not to grant bail to him. Hence, the application for bail is rejected. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]