1 18-apln861-10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.861 OF 2010 1. Mahadeo Dadu Adsul, & 2. Kuldeep Mahadeo Adsul. ..Applicants. Vs. The State of Maharashtra ..Respondent. .... Mr.Rahul Kulkarni, Advocate for the applicants. Mr.K.V. Saste, A.P.P. for the State. .... CORAM : A.R.JOSHI, J. DATED : 09TH JULY, 2010 P.C. 1. Heard rival submissions at length on this application for regular bail preferred by both the applicants who are original accused Nos.2 & 3. They preferred this application for bail during pendency of the matter for the offences punishable under Sections 302, 342 read with Section 34 of Indian Penal Code. Allegedly there are total three accused in the present matter and case of the prosecution is based on 2 18-apln861-10 circumstantial evidence. Reportedly, there is no direct eye witness to the actual incident of assault on the deceased . 2. It is also case of the prosecution that there was some illicit relationship between the wife of accused No.1 and his friend. Even after marriage of accused No.1 with his wife such relations continued and at times wife of accused No.1 was going out along with the deceased, in his Tata Sumo motor vehicle which the deceased was using for hire. Apparently, prior to the incident wife of accused No.1 had left her house and was with the deceased. Her father and brother i.e. present applicants/accused Nos.2 & 3 were out on her search. Also, according to the prosecution on the spot where the dead body was subsequently found in the vehicle owned by the deceased, the actual incident of assault on the deceased took place. According to the prosecution, accused No.1 used weapons to assault the deceased and he was assisted by the present applicants who used the iron crow bar and wheel spanner for assault. On perusal of the postmortem 3 18-apln861-10 report it reveals that there are about more than 23­24 injuries and major injuries are on the head causing probably instantaneous death. 3. On behalf of the applicants, it is strongly submitted that even the statement of wife of accused No.1 is not incriminating inasmuch as though she mentioned presence of the present applicants, ­­ her own father and brother, on the spot during the incident, she does not take their names as the assailants when she does take the name of her husband i.e. accused No.1 as the assailant, assaulting the deceased after taking him from the Tata Sumo vehicle. By taking shelter of this statement, it is further submitted on behalf of the applicants that according to the said witness accused No.1 told accused No.2 to leave the spot when accused Nos.2 & 3 tried to intervene the commotion. Thus by taking shelter of the said statement, it is submitted that even according to the said witness, wife of accused No.1, the assault is only by accused No.1 and not by the present applicants/accused Nos. 4 18-apln861-10 2 & 3. 4. Contrary to this argument, learned APP brought attention of this Court towards the last four lines of the said statement referred on behalf of the applicants and submitted that though according to the said witness applicant No.2 was asked to leave the spot along with wife of accused No.1, infact she along with her young son left the spot thereby by implication it can be ascertained that accused Nos.2 & 3 remained on the spot and did not leave the place when wife of accused No.1 was left the spot. In any event, contents of the said statement of the wife of accused No.1 cannot be taken in support of the present applicants. This is more so when apparently there are recoveries at the instance of the present applicant No.1 as to one iron crow bar and also his blood stained clothes when the applicants were arrested on 1st November, 2009 i.e. immediately on the next day of the offence. 5. On this recovery of crow bar, it is tried to be argued on 5 18-apln861-10 behalf of the applicants that at the scene of offence one iron crow bar was found in Tata Sumo vehicle in which the dead body was found and there is rather discrepancy as to how there could have been another recovery of crow bar at the instance of the applicant No.1 that also from his own vehicle and not from the Tata Sumo vehicle. So far as this discrepancy is concerned, learned APP gave clarification by taking shelter to the contents of the spot panchanama and recovery panchanama at the instance of present applicant No. 1 and further submitted that there were two iron crow bars apparently used, one found in the Tata Sumo vehicle when the scene of offence panchanama was conducted and another one recovered at the instance of the present applicant No. 1/accused No.2. 6. Considering the above factual position and prima facie material, it would not be in the fitness of the situation to release both the applicants on bail during pendency of the trial and hence the present application is disposed of with 6 18-apln861-10 following order :­ :: O R D E R :: [i] Criminal Application No.861 of 2010 for regular bail stands rejected and accordingly disposed of. [ii] The trial Court shall not be influenced by any observations made in the present order so far as the merits of the case are concerned. (A.R.JOSHI,J.)