1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 415/2010 IN CRIMINAL APPEAL NO.575/2009 Ashok Sahebrao Borude. Applicant. V E R S U S The State of Maharashtra Respondents. Mr. K.D. Mote,h/f Sarika Deshpande, Advocate for the petitioner. Mr. Shaikh A. P. P. for the State. CORAM : S. B. DESHMUKH & S.S. SHINDE, JJ. DATE : 21ST APRIL, 2010. PER COURT :- 1. Heard learned counsel for the applicant, learned A. P. P. Mr. Shaikh for respondent – State. 2- Rule. Rule made returnable forthwith. Heard finally with the consent of the parties. 3- Applicant seeks suspension of sentence and his release on bail. Applicant is convicted by the learned Sessions Court, Shrirampur for offence punishable under section 302 of Indian penal Code and sentenced to suffer imprisonment for life with fine of Rs.5,000/-. Default 2 sentence is also detailed by the trial court in its operative part of the judgment. It was Sessions Case No.22/2008. 4- Date of Incident in the case on hand is February 21, 2008. Time alleged by the prosecution is around 06.30 to 07.00 p.m. Complainant is the father of the present applicant. Its a case of alleged matricide on the part of the present applicant. Name of the mother of the present applicant is Sakharabai. It is not in dispute that, applicant along with his parents, younger brother , his wife and children was residing at village Watapur. Family of the applicant does have agricultural land. Prosecution has alleged that six months prior to the incident, wife of the present appellant-applicant had committed suicide. Offence was registered at the instance of father-in-law of the present applicant. Present applicant along with others was accused in that case. Said case is pending. Applicant was under the impression that his wife had committed suicide on account of harassment by deceased Sakharabai i.e. mother of the applicant. According to prosecution, applicant found every wrong on the part of deceased Sakharabai, his mother. He, therefore, was feeling a grudge against deceased Sakharabai. He assaulted on the neck of deceased Sakharabai with an axe. Prosecution claims evidence by way of confessional statement Exh. 19 of the present applicant and circumstantial evidence. Among the circumstances, according to informant, around 07.00 p.m. he returned 3 from his land to house, to find the applicant standing near the dead body of deceased Sakharabai. He also saw that axe was in the hand of present applicant. That is how report was lodged by the father of the applicant. Accordingly criminal law was set in motion. Charge was framed under section 302, 309 of the Indian Penal Code. According to prosecution, after committing murder of Sakharabai - the mother, applicant felt guilty and tried to commit suicide. He used pestle for that purpose. Prosecution, to establish the charge against the applicant, examined in all 10 witnesses. Apart from the oral evidence of 10 witnesses documentary evidence Exh.42 to 48 including report of the Chemical Analyzer is also placed on record. Discovery is made by the prosecution at the instance of present applicant. Discovery is of the weapon alleged to have been used in the offence i.e. axe. 5- With the assistance of counsel present before the Court, we have seen findings of the trial court. Record is also available. Trial court has extensively considered the confessional statement Exh.19. Learned Judicial Magistrate who has recorded confessional statement under section 164 of the Code of Criminal Procedure is also examined on behalf of the prosecution. Procedure which requires to be undergone while recording judicial confession, has been conducted by the learned Magistrate. Trial Court accepted the evidence of learned Judicial Magistrate First Class and found proved the confession statement Exh.19. 4 Status of the present applicant as High School teacher has also been taken note of by the trial court. From the material on record, trial court opined that present applicant had obtained earned leave from 20.03.2008 until 22/23.02.2008. Date of the incident is on 21.02.2008. Trial court has opined that applicant was on leave on the date of incident. Resultantly he was present at the house. He found no explanation from the applicant for obtaining leave. After appreciating the evidence and totality of circumstances trial court has recorded a finding of guilt for the offence punishable under section 302 of Indian Penal Code. 6- Counsel for the applicant points out that applicant does have two children. Applicant has lost his wife. There is no one in the family to look after small children of the applicant. According to him, applicant did not understand the nature of confession. He claims that procedure adopted by the learned Magistrate while recording confession under section 164 of Cr. P. C. is not legal and proper. 7- We have given due consideration to the submissions of the counsel present before the Court on behalf of the parties. Indisputably, applicant was not on bail during the trial. In our view, no case has been established for suspension of the sentence and release of the present applicant on bail. 5 8- Criminal application stands dismissed. Rule discharged. At the request of the counsel for the applicant, hearing of the appeal is expedited. We have noticed that paper book is also ready. ( S.S. SHINDE ) ( S.B.DESHMUKH ) JUDGE JUDGE. aaa/415.10 .......