1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (APPA) NO.392 OF 2011 IN CRIMINAL APPEAL NO.506 OF 2010.. (MEHBOOBKHAN HAYATKHAN PATHAN..VS.. STATE OF MAHARASHTRA THR. P.S. NANDGAON PETH ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dr. U.K. Kalsi, Advocate (Appointed) for Appellant. Mrs. Sangeeta Jachak, A.P.P. for Respondent. CORAM : MRS. V.K. TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATE : JUNE 23, 2011. Heard learned counsel for the applicant-original accused No.2 Mehbookhan Pathan and learned Additional Public Prosecutor for the State. 2. The applicant has been convicted under Sections 302, 394, 201 read with Section 34 and under Section 397 of the Indian Penal Code. The applicant is now seeking bail. 3. The prosecution case, briefly stated, is that on 12.06.2006 at about 7.00 p.m. P.W. 1 Arundhati along with her husband Dr. Amol Vaidya (deceased) went to ring road Kathora for a walk. As it was getting dark, they came back to their car. That time three persons on a motor cycle came there. The gestures and words uttered by the three men did not seem proper, hence Arundhati told Amol to sit in the car. Those persons asked Amol as to who is the girl, to which Amol replied that she was his wife. One of them then said 2 that though she was Amol's wife they would now make her their wife. One of them told the others that after a long time they had got good “mal”. Those persons were trying to approach Arundhati and Amol was protesting and pushing them. Meanwhile, Arundhati sat in the car and started calling her residence on cellphone for help. However, one of the persons i.e. the applicant snatched the cellphone as well as gold bangle from her hand. Arundhati noticed that the other two persons and Amol were having scuffle at the backside of the car. After some time, she heard those persons saying that they should run away because some one was coming from backside. The three persons then sat on their motor cycle and drove away. Meanwhile, one motorcycle came from back side and went towards Kathora side. When Amol sat in the car, Arundhati saw that his shirt was smeared with blood. Dr.Amol told her that those three persons had snatched away his cellphone and wallet and assaulted him. She took Amol to the hospital. However, he was declared dead at about 9.30 p.m. On examination it was found that Dr. Amol had four punctured wounds on his chest which were caused by a sharp and pointed weapon i.e. Article-N sword stick. 4. Arundhati (P.W.1) has identified the present applicant as one of the three persons. The learned counsel for the applicant submits that there was no light at the scene of the incident and since the incident had taken place at night time it was not possible for Arundhati to observe the assailants so as to properly identify him later. As far as this aspect is concerned, it is noticed that Arundhati in her examination-in-chief has stated that headlights of the car were kept on and she was standing along with her husband 3 next to the car and they were chit-chating and thus, there was sufficient light for Arundhati to observe the assailants. 5. The learned counsel for the applicant contended that Arundhati has not given the detailed description of the accused in the FIR, hence her identification of the applicant cannot be relied upon. It is not as if Arundhati has not given any description of the assailants in her FIR. She has given the broad description of the assailants. It is noticed that there was light at the scene of the incident and that Arundhati had ample time and opportunity to observe the features of the accused. Hence, it was possible for her to observe the accused persons. The features of the persons who committed such a ghastly act would be imprinted on her mind and she is not likely to forget them in a hurry. Moreover, P.W. 1 Arundhati had no reason to falsely implicate any of the accused persons. She would not let the murderers of her husband go scotfree and falsely involve the applicant. Hence, merely because she has not described the features of the accused in detail in her FIR, it cannot be a ground to disbelieve her. 6. In addition to identification of the applicant by Arundhati the prosecution has also relied on the circumstance of recovery of broken pieces of cell phone, SIM card and wallet belonging to deceased Amol at the instance of the applicant. In the said wallet there was Master Card, PAN Card and Driving Licence of deceased Amol as well as some foreign coins. These articles were identified by Arundhati. 7. The learned counsel for the applicant submitted that the conduct of Arundhati is rather unnatural hence, her 4 testimony cannot be relied upon. To support this contention she has pointed out that Arundhati was a medical student hence, she was expected to have a first aid box with her and when her husband was stabbed she should have given first aid to her husband. Mrs. Kalsi submitted that instead Arundhati rushed her husband to the hospital which is unnatural conduct on her part. We do not find the conduct on the part of Arundhati at all unnatural. First of all Arundhati was only a young medical student. Even assuming she had some first aid box with her when her, husband has sustained several serious injuries caused by sharp edged weapon on vital parts of the body it was necessary for her to rush him to the hospital, which she has done. In any event the injuries were not such as could be treated with a first aid box. Thus, we find no merit in this submission. 8. Thereafter, the learned counsel for the applicant submitted that the character of Arundhati is suspicions as she had taken her husband to a deserted and lonely place. We do not find any suspicions behaviour on the part of Arundhati in doing so. It is to be borne in mind that marriage of Arundhati with Dr. Amol had taken place just two months prior to the incident. Arundhati was residing at Amravati where she was taking her medical education and her husband, who was Orthopedic surgeon, was staying at Warud where he had his Nursing Home. They were not staying together. On account of the fact that Arundhati was studying at Amravati on the day of incident Dr. Amol called Arundhati stating that he would be coming to Amravati. Hence, when he came to Amravati, Arundhati took him to the spot. As they were newly married and were meeting after a number of days we do not find anything unusual in the act of Arudhanti taking 5 her husband to a deserted place. Obviously both of them would want to spend some quiet moments together before they met the rest of the family members. 9. The learned counsel for the applicant thereafter submitted that the case of the prosecution that Arundhati identified the applicant in test identification parade cannot be relied upon because according to Arundhati test identification parade was over at 2.30 p.m. whereas P.W. 10 Executive Magistrate, who conducted test identification parade states that it was over by 4.00 to 4.25p.m. The learned Additional Public Prosecutor states that it is not so as the evidence of P.W. 10 shows that the Test Identification Parade was held at 2.00 to 2.30 p.m. Assuming that there is any discrepancy in time we find no reason to disbelieve testimony of Arundhati and even if evidence of Arundhati identifying the applicant in test identification parade is excluded, the evidence on record shows that Arundhati had enough time to observe the features of the accused. There was sufficient light at the place of the incident to observe features of the accused. The features of the person who committed such a ghastly act would be imprinted on her mind and she was not likely to forget them in a hurry. Thus, even if there is some lacunae in the Test Identification Parade, it would not affect the evidence of Arundhati identifying the accused. 10. In the case of Ronny @ Ronald James Alwaris Vs. State of Maharashtra, reported in AIR 1998 SC 1251 the Supreme Court has held that when the witness has had sufficient opportunity to observe the assailant, even though the assailant was unknown, not holding test identification parade would not affect the prosecution case. 6 11. Lastly, it is submitted that the applicant is suffering from mental ailment “psychosis”. Hence, bail be granted to the applicant on medical ground. As far as this aspect is concerned, the medical certificate does not show that the ailment is serious in nature. If at all the applicant has some ailment, the Jail Authorities will ensure that he is provided necessary treatment and we see no reason to release him on bail on this ground. 12. Looking to the above facts, we are not inclined to grant bail. Application is rejected. Needless to say that the Jail Authority to ensure that the applicant gets the medical treatment as is necessary. JUDGE JUDGE RR..