1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO. 399 OF 2010 IN CRIMINAL APPEAL NO.50 0F 2010 Laxman Bhimrao Kale ..APPLICANT VERSUS The State of Maharashtra ..RESPONDENT Mr S.J. Salunke, Advocate for the applicant; Mr S.D. Kaldate, A.P.P. for the respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 24th February, 2010 PER COURT : The applicant by this application seeks suspension of the substantive sentence of imprisonment and his enlargement on bail pending the decision of this appeal. The appellant/applicant has filed Criminal appeal No.50 of 2010 challenging his conviction for an offence punishable under section 302 and 498-A of the Indian Penal Code. The applicant stands convicted on the allegations that the applicant had strangulated his wife Kishkinda in the night intervening between 25th and 26th March, 2007, on the ground that the applicant suspected that the 2 applicant was not the father of the child. It is further allegation of the prosecution that Kishkinda was pregnant by ten weeks as her marriage was solemnized on 16.12.2006 and the applicant suspected that he had not fathered the foetus which was in the womb of Kishkinda. Prosecution, in order to support its case examined P.W.3 Harischandra and P.W.7 Tarabai in respect of the alleged motive. Prosecution also examined P.W.1 in respect of the recovery of the rope and the medicine relating to the abortion. The Trial Court ultimately found that apart from these two circumstances, the applicant had not offered any explanation and the deceased had died in the house of the applicant. There was also evidence of P.W.5 Devidas in respect of the extra judicial confession of the accused. 2. Mr S.J. Salunke, learned Counsel for the applicant has urged before us that motive has not been established by the prosecution as also the recovery of rope and medicine at the behest of the applicant/accused as P.W.1 Uttam has admitted that the applicant was hand-cuffed. In respect of absence of any explanation, it is urged before us by the learned Counsel for the applicant that the prosecution has not established that the applicant was present in the house at the relevant time. In respect of extra-judicial confession, it is urged by the learned Counsel for the applicant that there are omissions and contradictions on vital aspects of the extra-judicial confession. The learned A.P.P. has supported the judgment and has urged before us for dismissal of the application on the 3 ground that prima facie there is sufficient material to justify the conviction of the accused and to reject his application for enlargement on bail, despite the fact that the applicant was on bail during trial. 3. At paragraph 30 of the judgment the Trial Court has enlisted the various circumstances which appear against the applicant/accused on the basis of the evidence of the prosecution. The aforesaid circumstances have already been highlighted by us in the earlier paragraphs. Even if the two circumstances i.e. circumstance of motive and recovery of rope and medicine is left out of consideration, according to us prima facie it is established by the prosecution that the accused had made extra-judicial confession to P.W.5 Devidas and has not offered any explanation whatsoever for the homicidal death of his wife Kishkinda. Deceased Kishkinda had died in the house of the applicant and failure of the prosecution to adduce evidence regarding presence of the applicant in the house, according to us is not of any consequence. In any event, the aforesaid circumstances, according to us prima facie establish the commission of the offence by the applicant. The aforesaid observations are restricted to the decision of the present application and should not be construed as any findings on merits at the time of consideration of the appeal on merits. 4. In the light of the aforesaid circumstances, we are not inclined to suspend the substantive sentence of imprisonment imposed on the 4 accused and his enlargement on bail pending the decision of the appeal. Application is accordingly rejected. (SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/criap399.10