1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO.236 OF 2010 IN CRIMINAL APPEAL NO. 659 OF 2009 Bhagwan s/o Ramhari Gaikwad ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ..... Miss Priyal Dilip Savant, Advocate for applicant (appointed) Shri K.J. Ghute Patil, APP for the respondent/State. ..... CORAM : P.V.HARDAS & SHRIHARI P.DAVARE, JJ. DATED : 19th January, 2010 ORAL ORDER : (Per Shrihari P. Davare, J.) 1. Perused. Heard learned counsel for the parties. 2. By the present application, the applicant (original accused) has prayed for suspension of substantive sentence awarded to him by learned Additional Sessions Judge, Aurangabad in Sessions Case No.138/2007, by judgment and order rendered on 29.8.2008 and requested for enlargement on bail during the pendency of the appeal. 2 3. The appellant faced the trial in Sessions Case No.138/2007 for the offence punishable under Sections 302 and 201 of the Indian Penal Code and came to be convicted therein and was sentenced to suffer imprisonment for life and to pay fine of Rs.500/- with default condition to suffer R.I. for one year for the offence punishable under Section 302 of the Indian Penal Code and also was sentenced to suffer R.I. for one year and to pay fine of Rs.500/- with default condition to suffer R.I. for three months for the offence punishable under Section 201 of the Indian Penal Code respectively. 4. Briefly stated, the prosecution has alleged that the appellant herein committed murder of deceased Madhavrao in the night of 20.3.2006 by hitting him with a stick on his head and subsequently throwing his body into the well and for burning the piece of stick and cap of deceased with intention of screening away from the legal punishment. 5. The learned counsel for the appellant urged that there is no direct evidence to connect the appellant with the alleged crime and the prosecution case is based upon the circumstantial evidence and the prosecution has failed to prove each circumstance against the appellant as well as failed to prove the chain thereof to prove the guilt against the appellant conclusively. The learned counsel for the appellant also canvassed that the evidence of last seen together the victim and the appellant herein i.e. the evidence of P.W.1 Balu, P.W.8 Rohidas and P.W. 9 Ramesh does not link the appellant with the crime since the proximity of time between alleged last seen together and seizure of dead body is wide 3 and, therefore, the said evidence cannot be believed. The learned counsel for the appellant further canvassed that the burnt piece of stick and cap was allegedly recovered at the instance of the appellant under the memorandum panchanama (Exhibit 19) in presence of P.W.2 Santosh, but the said articles were recovered from a gutter, which is an open place and accessible to the public at large and, therefore, the recovery of the seizure of said articles cannot be construed as incriminating piece of evidence against the appellant herein. 6. The learned counsel for the appellant further submitted that the prosecution has miserably failed to prove and establish the motive for the commission of the alleged offence by the appellant herein as well as as mentioned hereinabove, failed to prove the chain of circumstances regarding participation of the appellant in the offence and, therefore, the conviction and sentence inflicted upon the appellant by the learned trial Judge is erroneous and hence, the appellant is entitled to be enlarged on bail. 7. The learned A.P.P. opposed the present application vehemently and countered the submissions advanced by learned counsel for the applicant and supported the judgment and order rendered by learned Additional Sessions Judge, Aurangabad, convicting and sentencing the appellant as aforesaid and submitted that although there is no eye witness to the commission of the murder of deceased Madhavrao, the prosecution has led the circumstantial evidence which unmistakenly points out towards the guilt and guilt of the accused only. It is submitted 4 that, accused and deceased had gone to weekly market at Pishor on the day of incident and they were seen together by P.W.1 Balu and P.W.9 Ramesh in the evening as well as P.W.8 Rohidas served them in the hotel and saw them dining and consuming liquor together. He saw them lastly at about 10.00 to 10.30 p.m. on the date of incident. The evidence of P.W. 7 Dr. Ratibhushan and post mortem notes disclose that solid food particles were found in the intestine of the deceased which shows that the death of the victim Madhavrao was within short time of his last meal. Moreover, the learned A.P.P. submitted that the evidence of P.W.7 Dr. Ratibhushan and post mortem notes reveal that the victim sustained injury on the backside of head, resulting into fracture skull and same would not be possible due to falling down in the well. As regards the motive, according to learned A.P.P., it has come in evidence that shortly after last meal and consumption of liquor, there was quarrel between the accused and the victim, which can be construed as reason for causing death of the victim by the appellant herein. 8. We have heard the submissions advanced by learned counsel for the parties as well as perused the record and proceedings which was made available to us for the perusal purpose. To substantiate the charges levelled against the appellant herein, the prosecution has examined inasmuch as 11 witness. Considering the ocular evidence as well as medical evidence, we are of the considered view that apparently there is prima facie case against the appellant herein. Moreover, it is also apparent that the submissions advanced by learned counsel for the applicant requires the appreciation of evidence, which cannot be done at 5 this stage and, therefore, we feel that this is not a fit case to enlarge the applicant on bail during the pendency of the appeal and hence, present application deserves to be rejected and same stands rejected accordingly. However, hearing of the appeal is expedited. We quantify the fees payable to learned counsel appointed on behalf of the applicant, at Rs. 1000/- for this Application. (SHRIHARI P. DAVARE, J.) (P.V.HARDAS, J.) fmp/cri236.10