{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4258 OF 2009 Vikram s/o Datrao Gudup Age-25 years, Occ-Agriculture R/o Basweshwar Chowk, Hadgaon, Dist-Nanded APPLICANT VERSUS The State of Maharashtra Through Police Station Hadgaon, Dist-Nanded RESPONDENT ....... Mrs.S.G.Chincholkar, Advocate for applicant Mr.N.R.Shaikh, APP for respondent State Mr.J.N.Singh, Advocate for original complainant ....... WITH CRIMINAL APPLICATION NO.4409 OF 2009 Niranjan s/o Dattarao Suryawanshi Age-32 years, Occ-Agriculture R/o Gopalpur, Tq-Parli Vaijnath Dist-Beed APPLICANT VERSUS The State of Maharashtra RESPONDENT ....... MrsJagtap h/f V.D.Patnoorkar, Advocate for applicant Mr.N.R.Shaikh, APP for respondent State Mr.J.N.Singh, Advocate for original complainant ....... {2} [CORAM : A.V.POTDAR, J.] DATE: 15th January 2010 PER COURT: 1. By these applications, the applicants have approached this Court for their release on bail in connection with 59/2009 registered with Hadgaon police station for an offence punishable u/s 302 r/w 34 of the Indian Penal Code and under certain sections of the Atrocities Act, as the applicants are arrested on 18.07.2009 and as the investigation is over and charge sheet is filed on 07.10.2009. 2. Heard learned counsel for the applicant followed by the submissions of learned APP, who is assisted by Mr.J.N.Singh, learned counsel for original complainant. 3. It appears that the said offence came to be registered on the complaint of one Narayan, father of deceased Santosh. It further appears that the deceased had been to Tirupati along with the present applicants on 08th July 2009. It also appears that on 15.07.2009 a telephonic message was received that Santosh is admitted in a Government Hospital at Karnul, Andhara Paradesh. It is alleged that on receipt of the said call, father of the deceased along with his other sons went to Karnul. It appears that against the medical advice, the deceased was shifted from Karnul to {3} Nanded. It is alleged that on the way a disclosure statement is made by the deceased that he was assaulted by the applicants at Tirupati. After Santosh was brought to Biloli, he was declared to be dead, after medical examination. Hence, the complaint came to be lodged on 17.07.2009. The applicants are arrested on 18.07.2009 and since then they are in jail. 4. During the course of submissions, it is urged on behalf of the applicants that this is not a case of direct evidence, but it is a case of circumstantial evidence. It is urged that the only circumstance against the applicants is that they accompanied the deceased to Tirupati and gave evasive replies to the parents and members of his family in respect of whereabouts of the deceased on their return to the native place. According to the applicants, during their journey, Santosh missed somewhere. It is urged that the entire prosecution case rests on the alleged disclosure statement of the deceased, which he has given on the way from Andhra Pradesh, however when he was admitted in the hospital on 12th in Andhara Pradesh, he had not disclosed as to how he sustained the injuries. According to learned counsel for the applicants, as this is a case based on circumstantial evidence and the applicants have deep roots in the society, they be released on bail. 5. While opposing the application, it is urged by the learned APP that there is oral dying declaration of the deceased to {4} his father and brothers which is to be believed. It was disclosed by the deceased that there was dispute between Santosh and the applicants in respect of misuse of ATM card. According to learned APP the applicants have to face a narco test for which permission is granted by the competent court and hence their further custody is required. 6. Considering the rival submissions and on perusal of the papers of investigation, it is not disputed that deceased Santosh was with the applicants when they left for Tirupati. Medical papers indicate that deceased Santosh was treated at Government Hospital, Karnul between 12 th and 15 th July 2009. He was admitted in the hospital by the Andhra Pradesh police and the history, as recorded in the medical papers is that accident by vehicle of some unknown persons. The medical papers does not speak that Santosh was admitted in unconscious condition. If the history recorded in Government Hospital at Andhra Pradesh is accident by unknown vehicle and there is no disclosure that the applicants had assaulted and abandoned him and in view of the fact that at the time of admission in the hospital he was found in intoxicated condition, and also in view of the fact that the statements of the adjacent patients and the medical officer in the hospital at Andhra Pradesh, there is no disclosure by Santosh that he was assaulted by the applicants and at the same time the disclosure by way of dying declaration does not found in the body of the FIR but it is written in the margin of the same, then it {5} cannot be concluded, at least at this stage, that the applicants are the authors of the injuries sustained by the deceased which have resulted into his death. Apart from the above, the papers of investigation do not link the applicants with the alleged incident and as the case is based on circumstance, and in view of the fact that only for the narco test their custody is not necessary, it is not desirable to detain the applicants in custody for an uncertain period. Case is made out to enlarge the applicants on bail. 7. In the result, both the applications are allowed. The applicants be released on bail on their furnishing surety in the sum of Rs.20,000/- each and on executing PR bond in the like amount. If required, the applicants to face narco test and not to tamper the prosecution witnesses. [A.V.POTDAR, J.] drp/A10/criapln4258-09