1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.688 OF 2009 IN CRIMINAL APPEAL NO.112 OF 2009 Faik Mustaq Karambelkar .. applicant -versus The State of Maharashtra .. Respondents Mr. Vikas Singh, adv. for the applicant. Smt V.R.Bhosale, APP for the state. WITH CRIMINAL APPLICATION NO.720 OF 2009 IN CRIMINAL APPEAL NO.111 OF 2009 Sachin Bhimrao Jumnalkar .. applicant. -versus The State of Maharashtra .. Respondents Mr. Vikas Singh, adv. for the applicant. Smt V.R.Bhosale, APP for the state. 2 CORAM: SMT. RANJANA DESAI & R. G. KETKAR, JJ DATED: 9th July, 2009 P.C. 1. These two applications can be disposed of by this common order because the facts involved in these applications are the same. Both the applicants were tried together by Additional Sessions Judge, Ratnagiri in Sessions Case No.l5 of 2007 for the offences punishable under section 302, l20B, 2l2 read with 34 of the Indian Penal Code and under section 25 of the Arms Act. 2. By judgment and order dated 6th November, 2009, learned Judge convicted the accused of offences punishable u/s 302 read with 34 of the Indian Penal Code and sentenced each of them to suffer RI for life. 3. The applicant Mr. Faik Mustaq Karambelkar in Criminal Application No.688 of 2009 is original accused No.3 and applicant Mr.Sachin Bhimrao Jumnaikar, in Criminal Application No.720 of 2009 is original accused No.2. 3 4. The case of the prosecution is that on l6.2.2007, at about 9.l5 p.m, the accused stabbed to death deceased Faiyaz Akim at Bailbag chowk, Ratnagiri. We have heard at considerable length learned counsel Mr.Vikas Singh for the applicants in both the applications. Learned counsel submitted that the prosecution has examined five witnesses. However, two of them PW7 and PW8, are related to the deceased and therefore, it is risky to convict both the applicants on the basis of their testimony. Learned counsel submitted that the said evidence may be kept out of consideration. Learned counsel stated that the prosecution has relied on PWS l2, l3 and l7 who have stated that they have witnessed the incident. Learned counsel submitted that these witnesses belong to the group of the deceased and therefore, they are biased in favour of the deceased. He submitted that learned Sessions Judge erred in relying on these witnesses. Learned counsel further submitted that recovery of kukri at the instance of accused No.3 cannot be relied upon. He submitted that assuming the recovery 4 to be true since the blood found on the kukri did not match with the blood of the deceased the said circumstance cannot be used against the applicant. He submitted that at the instance of accused No.3 his own clothes were recovered. However, the blood found on those clothes did not match with the blood of the the deceased. 5. Learned counsel further submitted that PW-1, is the complainant. She was shown the weapons of assault, but she could not identify the weapons of assault, therefore, she is not a reliable witness. Learned counsel in this connection relied on the judgment of Supreme Court in Vadivelu Thevar -vs- State of Madras, 1957 AIR (SC),614. Learned counsel then submitted that PW-1 lodged her complaint at l2.30 am, but before that the doctor who had examined the deceased had contacted the police station and station diary was recorded at 2l.45pm. Learned counsel submitted that the station diary entry being first in point of time ought to have been treated as FIR. The prosecution story as 5 disclosed in FIR lodged by PW l, therefore, cannot be relied upon. In support of this submission learned counsel relied on Ramesh Baburao Devaskar -vs- State of Maharashtra & ors,2007 (4) Crimes l40 SC. Learned counsel then submitted that the prosecution has used habitual panchas and therefore, all the discoveries are doubtful. In this connection he relied on the judgment of this Court in Shri.Bhagwatsingh Gaud -vs- State of Goa, 1998 BCR(cri) 485. 6. Learned counsel also pointed out that the statement of PW-l3, was recorded l3 days after the incident. Hence the evidence of this witness is suspect. In this connection, he relied on the judgment of the Supreme Court, in State of Rajasthan -vs- Teja Singh, 2001, AIR SC 990. Learned counsel submitted that in the circumstances the applicant may be released on bail. 7. We are not impressed by any of the submissions of learned counsel. The prosecution has examined five eye witnesses. PW l2, l3 & l7, have clearly stated that they had seen the incident. They have named the 6 applicants as the assailants of the deceased. We do not find any material discrepancy in their evidence. Merely because they are allegedly from the group of the deceased, their evidence cannot be discarded at this stage. Similarly evidence of PW-1 and PW-8, cannot be discarded at this stage because they are relatives of the deceased. They have also witnessed the incident and referred to accused Nos 2 & 3 as assailants of the deceased. In view of the by and large consistent evidence of eye witnesses, prima facie it is not possible for us at this stage to say that the prosecution has not established its case against the applicants beyond reasonable doubt. So far as accused No.2 is concerned, shirt recovered at his instance was stained with blood and blood found thereon tallied with the blood group of the deceased. There is discovery of kukri at the instance of accused No. 3. Kukri had human blood on it. Moreover, jeans of accused No.3 which were recovered at his instance were also stained with human blood. So far as submissions made by learned counsel for the applicant on the basis of 7 judgments of the Supreme Court and of this Court, are concerned, we leave them open to be argued at the stage of hearing of the appeal. However, it is not possible for us to release the applicants on bail on those grounds because we have on record prima facie consistent evidence of eye witnesses. Hence both the applications are rejected. However, the hearing of the appeal is expedited. (SMT. RANJANA DESAI, J) (R.G. KETKAR, J)