3103appa202.11.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION (APPA) No.202 of 2011. in CRIMINAL APPEAL NO.423 of 2006. Shivchand Samaji Khandake. ..vs.. State of Maharashtra. ------------------------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------------- Mr.R.H.Rawlani, Adv. for the applicant. Mr.T.A.Mirza, APP for the respondent. CORAM : MRS.V.K.TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATED : 31ST MARCH, 2011. 1. Heard the learned counsel for the applicant and the learned APP for the respondent. 2. The applicant along with other accused has been convicted under Section 302 r/w 34 of the Indian Penal Code. The applicant is now seeking bail. 3. The prosecution case is that deceased Suresh Wani was a witness in case of murder of one Damu Wani. The present applicant and original accused no.5 were accused in the murder case of Damu Wani. On account of the fact that Suresh Wani was an eye witness in the murder case of Damu 3103appa202.11.odt 2/3 Wani, the applicant along with other accused killed him by means of sharp- edged weapons. 4. PW 3 Ramkrushna is an eye witness to the incident. Ramkrushna has stated that as his brother gave evidence in the murder case of Damu Wani, applicant alongwith others committed murder of his brother on 3/10/2004. Ramkrushna has stated that at about 6.45 when he was returning home, he saw that the applicant alongwith other accused assaulting his brother with sharp-edged weapons. In his deposition Ramkrushna has stated that accused no.4 i.e. present applicant and accused no.5 inflicted blows by gupti and accused nos. 2 and 3 beat his brother by kicks and fists blows. Deceased Suresh sustained 17 injuries in the incident. 5. The learned counsel for the applicant submitted that witness Ramkrushna has stated that he saw the entire incident in the light of Scooter. He pointed out that this is an improvement. He submitted that as the source of light stated by this witness, has proved to be an omission, there being no source of light, it was not possible for this witness to see the incident. Even assuming that it is an improvement, it is noticed that the incident had taken place at about 6.45 p.m. hence, at that time it would not be so dark that identity of the accused persons could not be ascertained. Hence, we find no substance in this submission. 6. Learned counsel for the applicant further submited that there is no recovery of weapons or clothes at the instance of accused and only evidence against the applicant is that of Ramkrushna. He pointed out that 3103appa202.11.odt 3/3 Ramkrushna is the first informant in the present case and though Ramkrushna claimed that the incident occurred at 6.45 p.m. he lodged FIR at 12.30 a.m. i.e. after about six hours of incident. He contended that this delay in lodging the FIR raises a serious doubt about the veracity of the evidence of Ramkrushna. As far as this aspect is concerned, it is to be noted that Ramkrushna has stated that when he reached the body of his brother, he found that he was dead, hence he returned home and informed the police Patil on telephone who in-turn informed the incident to the police Station. Thus, it is seen that immediately after the incident, Ramkrushna has informed the police Patil about the incident on telephone. On being informed, the police came to the village and thereafter the FIR was recorded. Even if the FIR was actually recorded at 12.30 a.m., this delay in recording the FIR is not such as to cast any doubt on the testimony of Ramkrushna. 7. Looking to the evidence on record, we find that there is sufficient material to connect the applicant with the offence hence, we are not inclined to grant bail. The application for bail is rejected. Hearing of the appeal is expedited. JUDGE JUDGE chute