APPA. 1328-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 1328 OF 2011 IN CRIMINAL APPEAL No. 419 OF 2011 Govindrao Ghamaji Gaware ... Applicant Vs. State of Maharashtra ... Respondent Mr. Shirish Gupte, Sr. Counse, i/b Jayant Bardeskar, for the Applicant. Mr. K. V. Saste, for the Respondent. Mr. M. S. Mohite, for original complainant. CORAM : V. M. KANADE, & A. M. THIPSAY, JJ. DATE : OCTOBER 19, 2011 PC: 1. Heard the learned senior counsel appearing on behalf of the applicant, learned APP for the State and the learned counsel appearing on behalf of the original complainant. The applicant has been convicted under Section 302 read with S. 34 of I. P. Code and sentenced to suffer rigorous imprisonment for life; he is also convicted for the offence punishable under S. 498-A of I. P. Code and sentenced to suffer rigorous imprisonment for three years. The applicant is in jail since 2008. 2. The prosecution case is that deceased Sarika was married to the brother of the applicant Jalindar. According to the prosecution, the applicant and his other two brothers used to demand gold from the APPA. 1328-11 - 2 - deceased and used to insist that she should bring said gold from her parents. It is also alleged that a demand of Rs. one lakh was made in order to enable the applicant and other accused to purchase the Bolero Jeep. According to the prosecution, the deceased was brought in an unconscious condition by the members of the family and thereafter she died in the hospital. Initially, according to the prosecution, the accused/applicant and others showed their unwillingness for post mortem being performed on the deceased. However, due to intervention of the brother of the deceased, police came to the hospital and thereafter post-mortem was performed. The doctor who performed the post mortem gave his opinion that death was caused on account of strangulation. The trial court convicted the applicant and his two brothers. 3. The learned senior counsel appearing for the applicant submits that presence of the applicant has not been established by the prosecution. He submitted that the other brother namely Navnath was released by this Court by an order dated 5th October, 2011. He submitted that so far as Navnath is concerned, this Court had observed prima facie that his presence was not established by the prosecution. He submitted that the applicant’s presence is also not established, and therefore, he is liable to be released on bail on the ground of parity. 4. On the other hand, Mr. Mohite, the learned counsel appearing for the original complainant submitted that deceased was brought to the hospital by the relatives and the applicant was also present in the hospital along with other relatives. He submitted that APPA. 1328-11 - 3 - conduct of the applicant and the other relatives at the hospital clearly shows that an attempt was made to take away body without allowing the doctor to perform post mortem on the dead body of Sarika. He submitted that parents of the deceased were informed on telephone that deceased had fainted and had become unconscious, and therefore, she was admitted in the hospital. It was submitted that therefore, presence of the applicant was established and case of the present applicant, therefore, is not similar to that of Navnath. 5. In our view, there is much substance in the submissions made by the learned senior counsel appearing on behalf of the applicant. Though there is material on record to show that deceased was brought in the hospital by the in-laws, there is no specific reference that the applicant had taken the deceased to the hospital. Apart from that, the brother of the deceased also in the cross- examination has admitted that he was not aware as to who was present in the house when the incident had taken place. Prima-facie, therefore, it does appear that there is no material to show that the applicant was present in the house when the incident took place. Under these circumstances, therefore, applicant deserves to be released on bail. 6. The applicant is directed to be released on bail, on execution of P.R. bond in the sum of Rs.25,000/- with one or two sureties in the like amount. He shall report to the concerned police station once in two months. [A. M. THIPSAY, J.] [ V. M. KANADE, J.]