Cri. Appln. 689/11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 689 OF 2011 IN CRIMINAL APPEAL NO. 93 OF 2011 Shaikh Kalam s/o. Shaikh Nabi, Age 30 yrs., Occu. Nil., R/o. Pushpa Garden, Chikalthana, Aurangabad. ....Applicant. Versus The State of Maharashtra ....Respondent. Mr. Satej S. Jadhav h/f. Mrs. Sadhana S. Jadhav, Advocate for applicant. Mr. K.G. Patil, Advocate for respondent. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. DATED : 30th March, 2011. ORAL ORDER : [ PER T. V. NALAWADE, J. ] 1. This application is filed for bail by appellant, who is convicted and sentenced in Sessions Case No. 143/2010 by Additional Sessions Judge -2, Jalna for offence punishable under section 302 of the Indian Penal Code (IPC). 2. Heard advocates for both sides. We have called for the record of Cri. Appln. 689/11 2 the sessions case, which was made available to this Court for perusal. It was mainly submitted for the appellant/accused that entire case is based on circumstantial evidence and circumstances are not sufficient to infer that it is the accused, who committed the murder. It was also submitted that one tommy is shown to be recovered as weapon, but the tommy is hard and blunt object and post mortem report shows that incise wound was found on the head of deceased which caused death. 3. For State it was submitted that accused has not given explanation when and how the deceased sustained the fatal injury. 4. It is the case of prosecution that the deceased had left home in the evening on 3.6.2009 in the presence of his wife Samina Begum. Both the deceased and accused were working on a truck. Tukaram Rathod, police constable of Mantha Police Station, District Jalna was doing patrolling duty. On intervening night of 3.6.2009 and 4.6.2009 he came across this truck/ container which was standing on the side of Borade Petrol Pump. The appellant was present in the container as a cleaner, was found sleeping in it. When inquiry was made with the appellant, he showed ignorance, who had killed the deceased. During the course of investigation the statement of person like owner of Gajanan Uphargruha Shri. Bhagwan Kale came to be recorded as he had seen the deceased and appellant together at about 11 to 10.30 p.m. on that night when the Cri. Appln. 689/11 3 container stopped in front of his hotel. During the course of investigation, the accused gave statement to PSI Syed Asif that he had concealed the weapon at a place near petrol pump of Indian Oil which is situated near the vicinity of the truck which was parked in stationary condition. The accused then led the police and panchas to the spot and one iron tommy came to be recovered on the basis of statement given by the appellant. This weapon was referred to Medical Officer who conducted the PM examination. Prosecution has examined all the witnesses including the widow of deceased and they have supported prosecution case. The wife has given evidence that about two months prior to the incident in question, there was quarrel between accused and her husband. 5. Dr. Kailas (PW 4) has given evidence on PM examination done by him and his evidence shows that one incise wound was found, which was caused by hard and sharp object at left forehead. This injury had exposed left eye with fracture of frontal bone extending upto vertex. There was a fracture at left superomedial orbital rim and eye ball had virtually come out from the orbit. The cause of death is said to be due to head injury due to hard and sharp object. Doctor has given evidence that weapon was referred to him for giving his opinion and he has given opinion that the injury found on the head of the deceased can be caused by such weapon. Weapon is tapering at one end. Doctor has given Cri. Appln. 689/11 4 opinion that this weapon can cause such injury. 6. For defence it was submitted that though the muddemal property was sent to C.A. Office, the C.A. report is not produced on record. 7. The evidence given before the Trial Court shows that it is case of last seen together and the accused/appellant has not given any explanation, who caused the injuries to the deceased when the deceased was present in the truck as a driver. The submissions made show that no bail was granted to the appellant during trial. The appellant is working as a cleaner and this circumstance also needs to be kept in mind for consideration of bail application. 8. It appears that there are sufficient circumstances to point finger to the appellant. The appeal can reach hearing in near future as this Court is hearing appeals of 2009 of the appellants who are in jail. So this Court is of the opinion that this is not a fit case to grant bail to the applicant. Application stands rejected. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/ca689.11