1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPLICATION NO. 786 OF 2008 IN CRIMINAL APPEAL NO. 254 OF 2005 SHIBU MUKUL DAS .. APPLICANT Vs. THE STATE OF MAHARASHTRA .. RESPONDENT Ms. Arti Bhide, Advocate (appointed) for applicant Mrs. V.R. Bhosale, APP CORAM:SMT.RANJANA DESAI & DR. D.Y. CHANDRACHUD,JJ. DATE: 13/8/2008 P.C. . The applicant is lodged in Nasik Road Central Prison, Nasik. He has been convicted by the Additional Sessions Judge, for Greater Bombay in Sessions Case No. 40 of 2004 vide his order dated 31/8/04 for offence punishable under Section 302 of the Indian Penal Code ("I.P.C." for short). He has been sentenced to suffer R.I. for life and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo further R.I. for three months. 2 The appeal has been admitted by this court. This is his application for bail. 2. We have heard Ms. Arti Bhide, learned counsel for the applicant. She submitted that the conviction of the applicant under Section 302 of the I.P.C. is unsustainable. She submitted that the prosecution story rests on the evidence of PW 3 Chandrakant Naik. Chandrakant Naik claims to have seen the applicant from his window. According to him he was at a distance of about 4 feet from the place where the deceased was attacked. Learned counsel pointed out that the incident took place on 26/3/03. The accused was arrested on 22/10/03 and the identification parade was held on 27/10/03. She submitted that it is inconceivable that PW 3 would identify the accused after such a long time. Learned counsel submitted that this being the only evidence the accused deserves to be released on bail. 3. Learned APP on the other hand strenuously opposed the grant of bail. 4. It is true that the prosecution story basically rests on evidence of PW 3 Chandrakant Naik. The 3 alleged delay in holding the identification parade was caused because the accused was absconding. He was arrested only on 22/10/03. Immediately thereafter identification parade was held on 27/10/03. If PW 3 Chandrakant Naik has seen the accused from a distance of 4 feet there is no reason why he would not be in a position to identify him. Moreover, PW 4 Ismail Khan, the Special Executive Magistrate is an independent witness. There is no reason for him to falsely implicate the accused. He has stated that the accused was identified by the identifying witness. 5. In the circumstances, in our opinion, there is prima facie evidence to indicate the complicity of the applicant. The applicant, therefore, cannot be released on bail. 6. We are informed that the paper book is prepared. In the circumstances of the case, we are of the opinion that this appeal must be heard immediately. In the circumstances, the application for bail is rejected. However, we direct that the appeal be placed before us for final hearing on 21/8/2008, because it is of the year 2005. 4 JUDGE JUDGE