1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL APPLICATION NO.834 OF 2008 IN CRIMINAL APPEAL NO. 1102 OF 2007 AMIT @ BANDYA ASHOK BHOSALE .. APPLICANT Vs. THE STATE OF MAHARASHTRA .. RESPONDENT Mr. A.P. Mundargi i/b Amit Sale for the applicant Mrs. M. M. Deshmukh, APP Mr. Shashikant Laxman Kalkutgi, Police Constable B. No.969, Sangli City Police Station present. CORAM:SMT.RANJANA DESAI & DR. D.Y. CHANDRACHUD,JJ. DATE: 29/8/2008 P.C. . The applicant is original accused 5. He was tried along with eight others for offence punishable under Section 302 read with Section 34 of the Indian Penal Code ("I.P.C." for short). By judgment and order dated 28/8/07 the applicant was convicted for the offence punishable under Section 302 read with Section 34 of the I.P.C. and 2 sentenced to suffer R.I. for life. Appeal filed by the applicant is admitted. This is his bail application. 2. We have heard Mr. Mundargi, learned counsel for the applicant at some length. Mr. Mundargi pointed out that the evidence against the applicant consists of testimony of two witnesses i.e. the complainant PW 1 Dhananjay Potdar and PW 4 Firoj Mujawar. Mr. Mundargi submitted that PW 1 has not given the name of the applicant in the F.I.R. The name of the applicant appears only in the supplementary statement of PW 4 recorded two days after the incident. He pointed out that PW 4 Firoj Mujawar is not an eye-witness. Firoj’s statement is recorded two days after the incident. No identification parade was held and Firoj claims to have identified the applicant in the court. Learned counsel urged that on such evidence the applicant could not have been convicted. He submitted that this is a fit case where the applicant should be released on bail. Learned APP on the other hand strenuously opposed the bail application. 2. PW 1 Dhananjay is the brother of the deceased. 3 In his evidence he has described the incident dated 7/11/06 in which his brother and his brother’s friend were murdered and ascribed roles to the accused. However, he has not assigned any role to the applicant in the commission of the offence of murder. He has gone on to say that after the bodies were cremated he came home and he suddenly remembered that two more persons were also present and one of them was the applicant and the applicant had assaulted his brother with knife. Thereafter on 9/11/06 he went to the police station and gave a supplementary statement in which he mentioned the name of the applicant as being one of the assailants of the deceased. 3. Absence of the name of the applicant in the First Information Report prima facie creates doubt about his involvement. PW 1 Dhananjay took two days to go to the police station for the purpose of recording his supplementary statement. We find it difficult to place reliance on the evidence of this witness. 4. PW 4 Firoj Mujawar is not an eye-witness. He admittedly reached the scene of offence when the deceased were being pushed by Vijay Pawar, accused 4 1. According to him, thereafter he went to Dhananjay and informed him. Dhananjay told him to bring the motor-cycle. He searched for the key of the motor-cycle, found it after 5 to 7 minutes and returned to the scene of offence on the motor-cycle. According to him he saw deceased Sanjay being shifted to a rickshaw by Dhananjay. His evidence, therefore, in our prima facie opinion, is of no use to the prosecution to substantiate the case that the present applicant assaulted the deceased. The statement of this witness is recorded two days after the incident. He has identified the applicant in the court as being present at the scene of offence. Identification parade was not held. 5. Apart from the evidence of these witnesses there does not appear to be any other credible evidence on record to prove involvement of the applicant. His case stands on a different footing from that of the other accused. In the circumstances, we are of the opinion that the applicant should to be released on bail. However, considering the fact that two persons were murdered and that the accused and the witnesses are residing in the same area, the possibility of some untoward 5 incident taking place cannot be ruled out. We, therefore, feel that for the initial period of four months the applicant should stay out the jurisdiction of Sangli city. Mr. Mundargi states that the applicant will stay at Kavathe Mahankal, which is stated to be at a distance of sixty kilometers from Sangli city. The applicant will have to furnish the address of the place where he proposes to stay at Kavathe Mahankal to the concerned police station Hence the following order: . The applicant Amit @ Bandya Ashok Bhosale is ordered to be released on bail in the sum of Rs.15,000/- with one or two sureties in the like amount. . For a period of four months the applicant shall stay in Kavathe Mahankal. He shall not enter the jurisdiction of Sangli city. He shall furnish his Kavathe Mahankal address to the concerned police station. He shall attend Kavathe Mahankal Police Station once in a month i.e. on first Monday of every month for a period of four months. . Application is disposed of. 6 JUDGE JUDGE